Allahabad High Court
Baladin And Another vs D.D.C. And Others on 10 July, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 18 A.F.R. Case :- WRIT - B No. - 14352 of 1984 Petitioner :- Baladin And Another Respondent :- D.D.C. And Others Counsel for Petitioner :- Santosh Kumar,Akhilesh Patel,Hausila Prasad,Kanhaiya Lal,Satish Chandra Dwivedi,Satya Prakash Mishra Counsel for Respondent :- SC,Dhruva Narayan Mishra,Kamal Srivastava,Shyamji Gaur Hon'ble J.J. Munir,J.
Order on Civil Misc. Amendment Application no.26 of 2019 This amendment application has been made belatedly at a stage when this writ petition has come up for final hearing. This writ petition is one of the year 1984 and this amendment application has been made in the year 2019.
There is no good ground to grant this amendment.
This amendment application is hereby rejected.
It is directed that in cases listed for final hearing, it shall be the responsibility of the Section Officer concerned that there is no application pending for orders. If there is an application brought subsequently, in a final hearing matter, that matter will not be listed for final hearing, but for orders first. Any violation from this direction, will be viewed seriously.
Order on Civil Misc. Application (to postpone final hearing) no.13 of 2019 This is an application made with a prayer to postpone hearing of the writ petition till disposal of the application filed by the petitioners under Order IX, Rule 13 CPC in Original Suit no.355 of 1970. This application is prima facie not only a dilatory device in this petition, which relates to the year 1984, but is one made mala fide, a fact about which this Court is convinced.
Learned counsel for the petitioners has not been able to show anything, on the basis of which this very old petition may be adjourned pending decision of a restoration application in a still older civil suit, somehow connected to the questions involved in the present petition; certainly not connected to the cause of action involved.
This application is rejected.
Order on Writ Petition
1. Heard Sri Kanhaiya Lal, learned Advocate holding brief of Sri Satish Chandra Dwivedi, learned counsel for the petitioners, learned Standing Counsel for the State and Sri Dhruva Narayan Mishra for respondent no.4.
2. This writ petition has been filed challenging an order dated 30.05.1984 passed by the Deputy Director of Consolidation, Prayagraj (then Allahabad) in Revision no.44 of 1981, allowing that Revision, filed by respondents nos.4, 5 & 6. The interest of respondent no.6 is now represented by respondent no.5. The Revisional Court while doing so, set aside an appellate order of the Settlement Officer of Consolidation dated 01.08.1981 passed in Appeal no.88/165/62 and Appeal no.95/168/177 of 1981, that had, in turn, affirmed an order of the Consolidation Officer dated 05.03.1980, granting mutation in favour of petitioners. The petitioners' application, thus, stands rejected by the impugned order dated 30.05.1984 made by the Deputy Director of Consolidation in Revision.
3. The proceedings giving rise to the impugned order commenced before the Consolidation Officer on an application for mutation made by the original writ petitioners, Baladin son of Shiv Badal and Vijai Bahadur son of Sitaram, seeking mutation of their rights over agricultural land, comprising Khasra nos.379 and 405, situate in Village Pasiapur, Pargana & Tehsil Soraon, District Prayagraj. The aforesaid mutation application was made under Section 12 of the U.P. Consolidation of Holdings Act, and hereinafter referred to as the Act.
4. The background in which the aforesaid proceedings for mutation commenced before the Consolidation Officer are these: Khasra plot no.379 admeasuring 5 Bigha, 19 Biswa and Khasra plot no.405 admeasuring 2 Bigha 5 Biswa, totaling an area of 8 Bigha 4 Biswa, said to be a grove situate in Village Pasiapur, Tehsil Soraon, District Prayagraj (then Allahabad) were in the ownership and possession of respondent nos.7 to 16. On 31st May, 1965, Beni Prasad Tandon, whose interest is represented by respondent nos.7 to 16, agreed to sell the khasra plots above detailed (for short the property in dispute) to the petitioners for a valuable sale consideration of Rs.3000/-. The owners are said to have actually sold the property in dispute for a sum of Rs.3000/- by means of a registered sale deed, dated 02.10.1965, executed in favour of respondent nos.4 to 6. The petitioners filed Original Suit no.384 of 1965 against the vendors last mentioned, represented by respondent nos.7 to 16 here, for specific performance of contract, and to cancel the sale deed executed in favour of respondent nos.4 to 6. The said suit was contested separately by respondent nos.4 to 6 and also by respondent nos.7 to 16. The petitioners' suit after trial was dismissed by a judgment and decree dated 22.12.1967, whereby the Court while refusing specific performance, granted a decree of compensation in the sum of Rs.2135/-, recoverable from defendants 4 to 9 to the suit by the plaintiff with pendente lite and future interest at the rate of Rs.4% per annum. The decree for compensation, thus, went against the vendors, who are represented by respondent nos.7 to 16.
5. Aggrieved by the aforesaid decree, two appeals were filed. Civil Appeal no.251 of 1968 was filed by vendors, that is to say, predecessors-in-interest, respondent nos.7 to 16, whereas Civil Appeal no.70 of 1968 was filed by the petitioners. The petitioners filed the Appeal against that part of the decree of the Trial Court, by which the specific performance of contract was refused, whereas respondent nos.7 to 16 appealed from that part of the decree by which they were ordered to pay Rs.2135/-, in compensation to the petitioners. The aforesaid appeals came up for determination before the Civil Judge, Allahabad [now Civil Judge (Sr. Div.)] on 28th October, 1968. The Appellate Court allowed both appeals, setting aside the decree, ordering the vendors to pay compensation to the petitioners, and at the same time, the part of the decree by which specific performance was refused to the petitioners was reversed, and the vendors were ordered to execute a sale deed relating to the property in dispute in favour of the petitioners, super-added with a direction that the decree holder would have to pay Rs.1000/- to the vendor, over and above the contracted price. Respondents nos.4, 5 & 6, who were defendants nos.1 to 3 to the suit were also directed to be joined in the execution of the sale deed, in order to pass an unimpeachable title.
6. Aggrieved by the appellate decree, a second appeal being Second Appeal no.3282 of 1968 was filed to this Court, which came up for hearing on 08.01.1970. The second appeal was dismissed and the decree made by the First Appellate Court was upheld. The decree for specific performance was executed by the Court of first instance, acting as the Executing Court, and a sale deed relating to the property in dispute was executed in favour of the petitioners on behalf of the vendors, that is to say, respondent nos.7 to 16, that was duly admitted to registration after execution by the learned Civil Judge on 22.07.1970. Respondents nos.4 to 6 thereupon filed Original Suit no.355 of 1970, that is to say, soon after execution of the decree of specific performance, in the Court of Munsif, East, Allahabad, seeking declaration to the effect that the decree passed in Original Suit no.384 of 1965 is illegal and void, and all proceedings in execution of the said decree be also declared void, together with their consequences.
7. It appears that the said suit was initially contested, at least upto time when the interim injunction application was heard and rejected vide order dated 13.10.1970, passed by the First Additional Munisif, Allahabad, vacating the earlier ex parte interim injunction order dated 22.08.1970. It also figures in the sequence of events in the history of litigation between parties that post execution of the sale deed, an application for execution, may be a further application, was made to the Court of first instance, seeking delivery of possession of the property in dispute. In the said execution case, that was numbered on the file of the Executing Court as Execution Case no.55 of 1970, Respondent no.4 filed objections under Order XXI Rule 29 CPC on ground that the petitioners had no knowledge of Suit no.384 of 1965, or had any notice served upon them. It was further pleaded that no proper guardian was appointed for respondent nos.4 to 6, all of whom were minors at that time, and, as such, the petitioners could not be given possession over the property in dispute, in execution of the decree passed in Original Suit no.384 of 1965. The said objections filed by respondent no.4 were contested by the petitioners and the learned Ist Additional Munsif, before whom these objections came up, dismissed the objections filed by respondent no.4 vide order dated 19.08.1971. It is pointed out that respondent no.4 had also filed objections under Section 47 of the CPC, may be raising pleas more or less to the same effect. The said objections were also dismissed by the Executing Court.
8. It is the case of the petitioners that the petitioners made an application in the execution case for the appointment of a Commissioner, to effect delivery of possession of the property in dispute to the decree holder, petitioners. Respondent no.4 also filed an application in the execution case to set aside the execution. Both the applications were heard together and disposed of by the learned Munsif by his order dated 12.04.1973. The learned Munsif, by the aforesaid order, rejected applications made by both the respondents, and allowed the petitioners' application, appointing one Sri R.D. Srivastava as Commissioner to deliver possession of the property in dispute, in execution of the decree passed in Original Suit no.384 of 1965. It is the petitioners' case that pursuant to the order dated 12.04.1973 passed by the learned Munsif, the Advocate Commissioner delivered possession over the property in dispute to the petitioners on 14.04.1973, and submitted his report to that effect. It is also alleged that on receipt of the report, the learned Munsif passed orders on 28.04.1973, striking off the execution case in full satisfaction. The aforesaid fact has been emphatically disputed by the fourth respondent in paragraph 16 of his counter affidavit dated 08.04.1985. The fourth respondent has emphatically denied the fact that possession of the property in dispute was ever delivered by the Commissioner to the petitioners. It is submitted that the entire proceedings of the Commissioner, on the basis of which the learned Munsif struck off the execution case in full satisfaction, was a got up report, that was drawn up sitting back in the office. There appears to be some further proceedings before the Munsif as there was some inaccuracy alleged in plot numbers, regarding which some further report was submitted by the Advocate Commissioner on 22.05.1973. The suit that was instituted by respondent no.4 in the year 1970, had for its basis the essential fact, that the transaction leading to the contract that culminated in the decree for specific performance of contract passed in Original Suit no.384 of 1965, was entered on behalf of respondent nos.4 to 6 by an uncle of respondent no.4, Ram Pati and father of respondent nos.5 & 6, as the fourth respondent was a minor, and so were respondent nos.5 & 6.
9. It is pointed out by the petitioners that Ram Pati was appointed next friend of respondent no.4 as he was present in Court, whereas respondent no.4 says that these proceedings were fraudulently taken, deriving unfair advantage of his minority. This is particularly so, as urged on behalf of the fourth respondent that his mother was alive at that time and she was his natural guardian, who was not served with any notice to serve as his next friend in the suit, and not Ram Pati, his uncle. He, therefore, assailed the entire contract and the transfer of his right in the property in dispute, as one beset by the fraud, as the man acting as his next friend during minority, did not defend his interest and colluded with the plaintiffs of that suit. The fourth respondent has stoutly condemned the entire proceedings of Original Suit no.384 of 1965 as one vitiated by fraud, including those that were taken in execution.
10. This Court does not intend to say one way or the other, that indeed, the proceedings of the suit that culminated in the second appeal, and the orders of the Executing Court were fraudulent. What this Court finds is that the learned Munsif, before whom, the fourth respondent filed a suit for a declaration that the entire proceedings of suit no.384 of 1965 were illegal and void, and further that all proceedings taken in execution of the said decree, were void, was decreed ex parte vide judgment and decree dated 16.03.1981 passed by the VIIIth Additional Munsif, Allahabad in Original Suit no.355 of 1970. The said ex parte decree has never been set aside, and is still in force. No doubt, the petitioners have made efforts to get the said decree set aside and an Application under Order IX Rule 13 CPC, has been filed on 19.03.1981. The said application was registered as Misc. Case no.10/1981, which came to be rejected by the Trial Court vide order dated 10.02.1984.
11. Aggrieved, Misc. Appeal no.43 of 1984 was filed under Order 43 Rule 1(r) CPC before the District Judge. The learned District Judge dismissed the appeal on 18.12.1985. The petitioners, thereafter, filed a review application to the District Judge in Misc. Civil Appeal no.43 of 1984. The review application was dismissed on 09.04.1986 by the learned District Judge, Allahabad. Challenging these orders, the petitioners filed Writ - C No.8571 of 1986 questioning the orders of the Trial Court, dated 10.02.1984, rejecting his restoration application and those of the District Judge in Appeal affirming it. The aforesaid writ petition was allowed on 29.11.2012 and all the three orders were quashed, with a remit of the matter to the Trial Court to decide the suit afresh, within a period of six months. It appears that what this Court actually meant was a decision of the Application under Order IX, Rule 13 CPC, but the order passed by this Court led to a situation where the Civil Judge (Jr. Div.), Sharki, Allahabad, without disposing of the Application under Order IX Rule 13 CPC proceeded with the trial of Suit no.355 of 1970. Finding these not to be intendment of this Court, the fourth respondent made an application before the learned Civil Judge (Jr. Div.) aforesaid, requesting the Court to seek a clarification of the judgment and order dated 29.11.2012 passed by this Court in Writ - C No.8571 of 1986. The Civil Judge rejected the said application, which led the fourth respondent to file a petition under Article 227 of the Constitution to this Court challenging the order of the learned Civil Judge, rejecting his application to seek a clarification, and the course of action adopted in proceedings with the suit, instead of deciding the Application under Order IX Rule 13 CPC, in the first instance.
12. This Court thereupon proceeded to dispose of the petition aforesaid, by an order on agreement of counsel appearing for both sides, the relevant part of which is extracted from the said order dated 2nd January, 2019, passed in Matter under Article 227 no.1640 of 2015, which reads as under:
"Both the counsels are agreeable to the position which is reflected from the order dated 29.11.2012 as corrected on 19.12.2012, that this Court has set aside the orders of rejection of the application under Order IX, Rule 13 C.P.C. and the orders passed in appeal filed against the rejection order as also the order passed on the review application, but the exparte decree dated 16.3.1981 has not been set aside as on date and is intact. The result is that the application under Order IX, Rule 13 C.P.C. filed by the defendant/respondents no. 1 and 2 stood revived and is pending disposal before the court below.
For the said fact, this Court does not find any reason to direct the parties to seek further clarification of the order dated 29.11.2012 as corrected on 19.12.2012.
The present petition is, accordingly, being disposed of with the direction to the court below i.e. the Civil Judge (Junior Division) Sharki, Allahabad to proceed for disposal of the application under Order IX, Rule 13 C.P.C. namely 'Paper No. 3-Ga' pending in Original Suit No. 355 of 1970, expeditiously preferably, within a period of three months from the date of submission of certified copy of this order.
It is made clear that the court below shall not proceed with the Original Suit No. 355 of 1970 on merits until disposal of the application under Order IX, Rule 13 C.P.C. as directed herein above, inasmuch as, further continuation of Original Suit No. 355 of 1970 would depend upon the order passed on the application under Order IX, Rule 13 C.P.C.
The court below shall further not grant any unnecessary adjournment to any of the parties in disposal of application 3-Ga under Order IX, Rule 13 C.P.C. within the time given above."
13. The aforesaid order of this Court has placed matters beyond cavil that the petitioners' application under Order IX Rule 13 CPC is still pending, and it is not the petitioners' case, that it has been disposed of till date.
14. Sri Kanhaiya Lal, learned Advocate holding brief of Sri Satish Chandra Dwivedi, learned counsel for the petitioners does not dispute this fact that till date the Application under Order IX Rule 13 CPC is pending in Original Suit no.355 of 1970, and the ex parte decree passed way back on 16.03.1981, is still operating. It is quite another matter that this application may be allowed, at some point of time, may be in the near future, which may alter the rights of the parties, but as the parties' rights stand, the entire decree passed in Original Suit no.384 of 1965, that has been upheld in Second Appeal by this Court, has been held to be inoperative and illegal. The ex parte decree dated 16.03.1981, passed in Original Suit no.355 of 1970 reads as under:
"वादी का वाद प्रतिवादीगण के विरुद्ध एकपक्षीय रूप से एकपक्षीय cost सहित डिक्री किया जाता है। वाद सं० 384 सन् 1965 में वादी के विरुद्ध पारित की गयी डिक्रीयाँ अवैधानिक और प्रभावहीन घोषित की जाती है।"
15. Now, the application for mutation out of which these proceedings arise has been moved on the foot of the decree passed in Original Suit no.384 of 1965, and all subsequent proceedings arising out of the said decree, including execution. Once the decree passed in the said suit, and resultantly all consequential proceedings are rendered void by dint of ex parte decree dated 16.03.1981 passed in suit no.355 of 1970, no rights based on the decree passed in Original Suit no.384 of 1965, or any consequential proceedings can be claimed by the petitioners, including the right to mutation of their names in the revenue records. The Deputy Director of Consolidation, Parayagraj (then Allahabad), therefore, rightly construed the rights of the parties to mutation of their names by proceeding on the basis of the ex parte decree dated 16.03.1981 passed in Original Suit no.355 of 1970, and rightly reversed the orders granting mutation in favour of the petitioners under Section 12, based on a decree that has now been held inoperative and illegal, by means of the ex parte decree dated 16.03.1981 passed in Original Suit no.355 of 1970.
16. The position of law about an ex parte decree is clear that so long as an ex parte decree remains intact, it is as much a decree as one on merits. It carries the same force. In this connection, it may be gainful to refer to the decision of the Supreme Court in Vijay Singh v. Shanti Devi, (2017) 8 SCC 837, where their Lordships have held:
"12. ............ There is no manner of doubt that an ex parte decree is also a valid decree. It has the same force as a decree which is passed on contest. As long as the ex parte decree is not recalled or set aside, it is legal and binding upon the parties."
17. It goes without saying that if the decree dated 16.03.1981 is set aside in any competent proceedings, including the pending Application under Order IX Rule 13 CPC, the petitioners' right to seek mutation or to the restoration of their mutation, if already made would revive. But as of date, till the decree passed in Original Suit no.355 of 1970, remains operative, no fault can be found with the impugned order passed by the Deputy Director of Consolidation, declining to grant mutation in favour of the petitioners, reversing the two authorities below, who granted mutation in favour of the petitioners.
18. In the result, there is no force in this petition. It stands dismissed. Costs easy.
Order Date :- 10.7.2019 Anoop