Allahabad High Court
Anil Kumar vs Deputy Director Of Consolidation And 5 ... on 11 August, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:162858 Court No. - 48 Case :- WRIT - B No. - 2395 of 2023 Petitioner :- Anil Kumar Respondent :- Deputy Director Of Consolidation And 5 Others Counsel for Petitioner :- Alok Kumar Yadav Counsel for Respondent :- C.S.C.,Azad Rai Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Alok Kumar Yadav, learned counsel for petitioner, Sri A.K. Rai, learned Additional Chief Standing Counsel for State-Respondents and Ms. Rama Goel Bansal, learned counsel for contesting-respondents.
2. With the consent of learned counsel for parties this matter has been heard and is being decided finally at this stage without exchange of pleadings.
3. Brief facts which are not in dispute are that, the Consolidation Officer, Chail-II, Kaushambi after hearing parties in the proceedings under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "Act, 1953") reserved judgment vide order dated 15.02.2023 and date fixed for pronouncement of order was 15.03.2023. It appears that judgment was not pronounced on the date fixed, i.e., 15.03.2023.
4. Contesting-respondents herein (Objectors in aforesaid proceedings) filed an application dated 05.04.2023 and sought permission to produce a witness (marginal witness of Will) for examination in the proceedings on the ground that it was an inadvertent error.
5. Consolidation Officer vide order dated 31.05.2023 allowed above referred application and granted opportunity to respondents herein to produce evidence. Petitioner being other party was also granted liberty to produce evidence, if any. In the order it has been noted that counsel for petitioner herein was not present. In the order sheet there was a brief order dated 31.05.2023, however, a separate and detailed order was also passed by Consolidation Officer on 31.05.2023 whereby application was accepted with cost of Rs. 500/- which was later on accepted by petitioner also.
6. Petitioner being aggrieved by above order filed revision before Deputy Director of Consolidation, Kaushambi on 07.06.2023 and after few adjournments the Revisional Authority vide order dated 08.06.2023 rejected revision by following order:
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7. Learned counsel for petitioner vehemently argued that once an authority or a Court has reserved judgment, no party has a right to seek further hearing in the form of filing any document or producing evidence or otherwise. It is only the authority who can fix the matter for further hearing or clarification even after the judgment is reserved and before it's pronouncement. Learned counsel for petitioner further submits that in the present case relevant provisions of Civil Procedure Code were not taken note and in absence of petitioner the application filed on behalf of contesting-respondents was allowed and matter was reopened and respondents were allowed to adduce evidence which was an illegal approach on the part of concerned authority. He further submits that various submissions on fact and law were raised in memo of revision, however, Revisional Authority by a cryptic and unreasoned order rejected revision even without considering the issue involved in the case. He placed reliance on a judgment passed by Supreme Court in Arjun Singh vs. Mohindra Kumar and others, AIR 1964 SC 993 and refers following extract of judgement:
"Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing 'of a suit has been provided for and O. IX, R. 7 and O. IX, R. 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus, provision has been made for every contingency, it stands to reason that there is no scope for, the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. Mr. Pathak however, strenuously contended that a case of the sort now on hand where a defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for. We consider that the suggestion 'that there is such a stage is, on the scheme of the Code, wholly unrealistic. ln the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit: (1) where the hearing is adjourned or (2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that O. XX, R. 1 permits judgment to be delivered after an interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by O. IX, R. 7 is passed the next stage is only the passing of a decree which on the terms of O. IX, R. 6 the Court is competent to pass."
8. Learned counsel appearing for contesting-respondents has vehemently opposed the above submissions that, petitioner has accepted the order passed by Consolidation Officer since he has accepted the cost. Notice was issued to petitioner, however, despite service he had not appeared to oppose the application filed by respondents. Learned counsel further submits that Revisional Authority has not committed any error of law since in the interest of justice and before the judgment was pronounced, the application was considered and for proper adjudication of case respondents were permitted to adduce evidence, i.e., a marginal witness to the Will. Petitioner is not prejudiced by the order since he has been granted opportunity to cross-examine the witness as well as he was also permitted to submit any other evidence, if so desired. Learned counsel has placed reliance on a judgment passed by Supreme Court in K.K. Velusamy vs. N. Palanisamy, (2011) 11 SCC 275 and relevant paragraphs of the judgment are reproduced hereinafter:
"13. The learned counsel for respondent contended that once arguments are commenced, there could be no re-opening of evidence or recalling of any witness. This contention is raised by extending the convention that once arguments are concluded and the case is reserved for judgment, the court will not entertain any interlocutory application for any kind of relief. The need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is reserved. If there is abuse of the process of the court, or if interests of justice require the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard, either fully or partly. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exceptional or extra-ordinary circumstances, to meet the ends of justice and to prevent abuse of process of court, subject to the limitation recognized with reference to exercise of power under section 151 of the Code. Be that as it may. In this case, the applications were made before the conclusion of the arguments.
14. Neither the trial court nor the High court considered the question whether it was a fit case for exercise of discretion under section 151 or Order 18 Rule 17 of the Code. They have not considered whether the evidence sought to be produced would either assist in clarifying the evidence led on the issues or lead to a just and effective adjudication. Both the courts have mechanically dismissed the application only on the ground that the matter was already at the stage of final arguments and the application would have the effect of delaying the proceedings."
"16. We may add a word of caution. The power under section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence. If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application."
9. Heard learned counsel for parties and perused the material available on record.
10. The facts are not under dispute that Consolidation Officer after hearing parties reserved the matter for pronouncement of judgement and a date was also fixed. However, judgment was not pronounced on the date fixed and thereafter an application was filed to reopen the case on behalf of contesting-respondents to allow them to adduce evidence, i.e., a marginal witness to the Will, purportedly on the ground that it was a relevant witness and due to inadvertent error he was not presented earlier.
11. According to impugned order passed by Consolidation Officer, petitioner was not appeared and order was passed at his back. In the memo of revision specific ground was taken that Consolidation Officer has committed legal error by allowing application after the judgment was reserved and specifically when despite a date was fixed for pronouncement of judgment it was not pronounced for two and half months as well as that application was accepted ex parte. However, as referred above, Revisional Authority in a very cursory manner and without even referring the facts of case and issue involve as well as submission raised, rejected revision by an absolutely unreasoned order which is against the spirit of Section 48(1) of Act, 1953.
12. The Advocates appearing on behalf of rival parties have placed reliance on Arjun Singh (supra) and K.K. Velusamy (supra) respectively but before considering issue in the light of above referred judgments this Court is of the opinion that since Revisional Authority has passed an absolutely unreasoned order without application of mind, therefore, the order per se is illegal and as such it cannot legally survive and liable to be set aside.
13. In the result, writ petition is partly allowed. Impugned order dated 08.06.2023 passed by Deputy Director of Consolidation, Kaushambi in Revision No. 162, is hereby set aside. The matter is remanded back to Revisional Authority to hear it afresh and after hearing rival parties and taking note of above referred judgments, pass a reasoned order expeditiously, preferably within a period of two months from today.
14. For a period of two months from today, or till the Revisional Authority pass any order, or whichever is earlier, the order dated 31.05.2023 passed by Consolidation Officer, Chail-II, Kaushambi, shall be kept in abeyance.
Order Date :- 11.8.2023 AK