Allahabad High Court
K.B. Lal (Krishna Bahadur Lal) vs Gyanendra Pratap And Others on 19 May, 2022
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 5 Case :- MATTERS UNDER ARTICLE 227 No. - 1575 of 2022 Petitioner :- K.B. Lal (Krishna Bahadur Lal) Respondent :- Gyanendra Pratap And Others Counsel for Petitioner :- Mohd. Shakeel Counsel for Respondent :- Rajendra Nath Hon'ble Mrs. Sangeeta Chandra,J.
1. Heard learned counsel for the petitioner and Sri Rajendra Nath, learned counsel appearing on behalf of the respondent nos.1 to 3, who has filed caveat on their behalf.
2. It is the case of the petitioner that he is the Secretary of U.S. Srivastava Memorial Educational Society, which looks after several institutions including educational institutions. On 13.04.2006 a registered sale deed was executed by respondent no.5 Mansa Ram in favour of U.S. Srivastava Memorial Educational Society in respect of the certain land situated in village Gharsaniya, Pargana Dewa, Tehsil Nawabganj, District Barabanki. The name of the petitioner Society was thereafter mutated in land records. On 22.04.2006, the respondent nos.1 to 3 filed a Suit for cancellation of sale deed dated 30.03.2006 along with prayer for permanent injunction before the court of Civil Judge (Junior Division), Court no.13 Barabaki registered as Civil Suit no.308 of 2006:Gyanendra Pratap and others Vs. Smt. Kalawati and others, on the ground that Kalawati had no right to execute the sale deed in favour of Mansa Ram on 30.03.2006 as she had no transferable right on the property in question. The plaintiffs did not challenge the sale deed dated 13.04.2006 but challenged the sale deed made out in favour of Mansa Ram the predecessor-in-interest of the petitioner.
3. The petitioner was impleaded as defendant no.3 in the said Suit. The petitioner filed his vakalatnama after service of notice on 22.04.2006. The Suit was transferred to another Court and the learned counsel appearing on behalf of the petitioner failed to appear. On 06.09.2006, the Trial Court decide to proceed ex parte against the petitioner. The petitioner came to know of the negligence on the part of his counsel and he filed a recall application in 2017. However, certain facts in the said application were against the record and therefore the application was withdrawn. Another application was filed on 23.11.2020 to which the respondent nos.1 to 3 filed their objections. The trial has rejected the application filed under Order IX Rule 7. The petitioner being aggreived filed a Civil Revision bearing no.52 of 2021:K.B. Lal Vs. Gyanendra Pratap and others. The Revisional Court has also rejected the Revision by its order dated 27.03.2022. Hence this petition.
4. Learned counsel appearing on behalf of the respondent nos.1 to 3- plaintiffs in the Regular Suit No.308 of 2006, has pointed out from the application moved by the petitioner under Order IX Rule 7 on 23.11.2020, a copy of which has been filed as Annexure-8 to the petition that no good cause has been shown except for alleging that the petitioner has engaged one local counsel, who did not look after the case diligently and did not inform that the Trial Court was proceeding ex parte by its order dated 06.09.2006. It has been submitted that the petitioner owns several educational institutions including Sherwood College situated in Barabanki. He has several litigations against him with respect to the fraudulent sale deeds and land grabbing and an army of lawyers who look after his litigation. He is in the habit of delaying the proceedings and it is evident from a perusal of the application that only vague averments have been made therein, not substantiated by facts/ pleadings on record or the order sheet. The Trial Court had noticed how the defendant had initially appeared and filed vakalatnama of his counsel Sri R.D. Rastogi in April, 2006 but later on did not file any written statement for a long time, therefore, the Court proceeded ex parte on 06.09.2006. The petitioner again appeared in 2011 and moved an application through the same counsel Sri R.D. Rastogi, praying for permission to file written statement. Even at that time in 2011, he had come to know of the order passed on the order sheet regarding proceeding ex parte against the defendant no.3, but he did not file any application for recall and moved the first recall application in September, 2017 numbered as Paper No.C-14. Later on the said application was withdrawn and another application was moved on 23.11.2020 Paper no.C-45. Plaintiffs filed objection against the said recall application stating that vakalatnama of Sri R.D. Rastogi is on record from the very beginning and he had been engaged as an Advocate in April, 2006 but it had been wrongly stated in the application for recall Paper no.C-45, that R.D. Rastogi has been engaged only in May, 2006.
5. The learned counsel for the respondents has also pointed out that the petitioner had moved an application on 12.07.2011 for seeking permission to file his written statement against which objection was filed, paper No.C-39 on 20.08.2011, saying that the Court had directed to proceed ex parte against the defendant no.3 by its order dated 06.09.2006 which had not been recalled, yet no attempt was made soon thereafter by the learned counsel for the petitioner to move appropriate application for recall. He waited for more than six years and then filed first application for recall in 2017. The application was later on not pressed and a fresh application moved on 23.11.2020 without explaining the reason for moving such application with delay. The Trial Court thereafter considering the facts of the case has rightly come to the conclusion that the application for recall of order for proceeding ex parte has been moved only to delay the trial of the case and harass the plaintiffs, therefore it had rejected the application for recall. The Revisional Court has also considered in detail all the submissions made by the revisionist-petitioner and then perused the record of the case and found that the averments made by the petitioner were false and misleading and has therefore found no case made out by the petitioner to allow his Revision and set aside the order passed by the Trial Court.
6. Learned counsel for the petitioner in his rejoinder has submitted on the basis of judgments rendered by this Court that an attempt should always be made for the case to be decided on merits. When the trial has not concluded, it would be appropriate that the application for recall or order for proceeding ex parte under Order IX Rule 7 be allowed. Judgements that have been cited before this Court are Deepak Mitra Vs. M/S Indian Press Pvt. Ltd., 2006 ALL CJ 1966; and Sanjay Kumar Agarwal and two others Vs. The District Judge, Lucknow and two others, passed in Writ Petition No.144 (M/S) of 2005; decided on 22.08.2013.
7. This Court has carefully perused the judgment rendered by the Coordinate Benches of this Court and finds that in the first case the plaintiff respondent had filed a Suit for recovery of arrears of rent and for eviction. After service of summons, the defendant had not appeared and the Trial Court decided to proceed ex parte against the defendants. After coming to know of such order, the defendant moved an application under Order IX Rule 7 immediately, without wasting much time. The Trial Court rejected the said application as not maintainable on the ground that hearing had been concluded and the date was fixed for delivery of judgment already by the Trial Court. This Court found on examination of record that till the date of decision of the petition, no judgment had been rendered by the Trial Court, the file having been transferred from one court to another court in the meantime. Therefore, this Court set aside the order passed by the Trial Court on the petitioner's application under Order IX Rule 7 C.P.C. This Court had observed that the defendant had put in appearance and he should have been given opportunity of hearing and the Suit should be decided on merits.
8. In Sanjay Kumar Agarwal (supra), also the petitioner Sanjay Kumar Agarwal challenged the order dated 28.04.2004 passed in Suit No.835 of 2000, whereby his application for recalling of order dated 10.03.2004 has been rejected by the Trial Court and the Revision was rejected thereafter by the District Judge, Lucknow. This Court observed that Suit was filed in the year 2000 and the Trial Court proceeded with the Suit ex parte in March, 2004. The application for recall of the order dated 10.03.2004 was moved on 26.04.2003 but the Trial Court rejected the same on the ground that the application under Order IX Rule 7 can be filed only on the next date fixed. This Court found such a reason to be against the law settled by the Supreme Court in the case of Sagram Singh Vs. Election Tribunal, AIR 1955 S.C. and Arjun singh Vs. Mahendra Kumar, AIR 1964 S.C. 993, and therefore set aside the order passed by the Trial Court as well as the Revisional Court and directed the trail court to provide opportunity of hearing to the defendants i.e. the petitioners.
9. This Court has also considered that the order passed by the Trial Court dated 07.10.2021 and the order passed by the Revisional Court. Although the order of the Trial Court is a short order mentioning only the grounds taken for rejection of the application, the Revisional Court's order is a very detailed order running into several pages wherein the Revisional Court has considered all the applications that were moved by the petitioner including the application for filing written statement that was moved on 12.07.2011 and also the contents of the application moved by the petitioner initially under Order IX Rule 7 on 01.09.2017 which was withdrawal on 21.11.2020, and the contents of the application moved thereafter on 23.11.2020 again for recall of the order.
10. The Revisional Court has compared the pleadings on record including the date of filing vakalatnama by the petitioner's Advocate R.D. Rastogi in April, 2006, which was wrongly referred to by the petitioner as having been filed in May, 2006. The Revisional Court has noted that Sri R.D. Rastogi has remained the counsel for the petitioner right from the very beginning i.e. when he had filed his vakalatnama on 22.04.2006 and it seems to be quite unbelievable that an Advocate who had filed an application on 12.07.2011 for permission to file written statement had no knowledge of the order dated 06.09.2006 for proceeding ex parte against the defendant no.3 i.e. the petitioner. The Revisional Court has considered the judgments that were relied upon by the learned counsel for the petitioner in the Revision i.e. Ram Lakhan Vs. D.D.C. 2015 (126) RD 343, Jai Prakash Vs. D.D.C. 2016 (131) RD Pg 482 and Dodram Vs. Collector, Pilibhit, 2014 (125) RD Pg 333, and found that the judgments were inapplicable in the facts of the case. The Revisional Court has expressed definite opinion regarding the malicious intention of the petitioner revisionist only to delay the proceedings and the deliberately false pleadings made in the two applications moved on 01.09.2017 and again on 23.11.2020.
11. No doubt, the Supreme Court has repeatedly observed that an effort should be made to decide the matter on merits and to give opportunity of hearing to all the parties concerned while deciding the Suit, but in this case this Court finds that the Suit was filed in the year 2006 by the plaintiffs respondents. The petitioner appeared and filed vakalatnama of his counsel on 22.04.2006 and thereafter failed to file written statement and filed application for permission to file written statement only on 12.07.2011. The counsel remained the same for the petitioner all throughout and while filing the application 12.07.2011 he must have come to know also from the order sheet that the court had already decided to proceed ex parte against the petitioner on 06.09.2006. However, the first application for recall moved under Order IX Rule 7 was only on 01.09.2017. The petitioner not pressed the said application after three years and later moved another application on 23.11.2020 under Order IX Rule 7 without showing any good cause.
12. The Trial Court and the Revisional Court had both observed on careful examination of the paper book and the order sheet that the statements made in both the applications were contradictory and misleading, amounting to deliberate misrepresentation and fraud and therefore have rejected the application and the Revision.
13. This Court in the limited jurisdiction it exercises under Article 227 of the Constitution, does not find any perversity in the orders recording concurrent findings of fact.
14. The petition stands dismissed.
Order Date :- 19.5.2022 Rahul