Allahabad High Court
Gram Panchayat Kabirpur vs Additional Commissioner ... on 4 December, 2021
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- WRIT - C No. - 8810 of 2019 Petitioner :- Gram Panchayat Kabirpur Respondent :- Additional Commissioner (Administration) Varanasi Division And 6 Others Counsel for Petitioner :- Manoj Kumar Yadav Counsel for Respondent :- C.S.C.,Abhishek Singh,Bhupendra Kumar Tripathi Hon'ble Dinesh Pathak,J.
1. Rejoinder affidavit and supplementary affidavit filed on behalf of the petitioner is taken on record.
2. Heard Sri Bhupendra Kumar Tripathi, learned counsel for the petitioner (Gaon Sabha), Sri Sanjeev Singh, learned Senior Advocate assisted by Sri Dinesh Kumar Singh, learned counsel for the contesting respondent No. 7, learned Standing Counsel representing respondents No. 1 and 2 and perused the record.
3. Learned counsel for the contesting Respondent No. 7 has refused to file any reply to the aforesaid supplementary affidavit and is agreed to argue the matter on merits.
4. As per the office report dated 26.11.2021, notices were sent to the respondents No. 3 to 6, however, neither the acknowledgement due nor undelivered envelope is received back till date. No one has put in appearance on their behalf.
5.Learned Senior Counsel states that respondent No. 7 is the vendee from respondents No. 3 to 6, who have lost their interest in the matter and even before the revisional court they did not appear and the matter was contested only by the respondent No. 7.
6. In view of the office report dated 26.11.2021 and the statement made by counsel for the respondent No. 7, service of notice upon the respondents No. 3 to 6 is deemed to be sufficient and the court proceeds ex-parte against them.
7. The present writ petition has been filed on behalf of Gram Panchayat, Kabirpur invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India challenging the judgment and decree dated 8.10.1985 as well as order dated 5.10.2016 passed by Sub-Divisional Officer (respondent No. 2) and order dated 14.8.2018 passed by Additional Commissioner (respondent No. 1).
8. Grievance of the petitioner is that a suit for declaration of Bhumidhari rights under Section 229B of The UP Zamindari Abolition and Land Reforms Act, 1950 (in brevity, ''UPZA Act') has been decided ex-parte against the petitioner and the restoration filed at the behest of the petitioner, against the said ex-parte judgment and decree, has illegally been rejected by the trial court, which was affirmed by the revisional court.
9. Facts culled out from the pleadings of the parties reveals that Habib Ullah (father of respondent No. 3 to 6) had filed suit dated 10.1.1983 for declaration under Section 229B of UPZA Act for declaring him as a Bhumidhar with transferable right over plot in question i.e. plot No. 59/4 area 0.77 decimal and plot No. 105/2 area 0.40 decimal. Aforesaid suit was filed against Gaon Sabha and the State. Service of notice was properly served upon the parties. Written statement had been filed by the State of Uttar Pradesh through District Government Counsel (Revenue) (in brevity, ''DGC (R)'). After exchange of pleadings, aforesaid suit was decreed by judgment and decree dated 8.10.1985. Aforesaid judgment was well within the knowledge of DGC (R), who has jotted the remark of ''seen' on the margin of the order sheet dated 20.11.1985. After death of Habib Ullah, name of his sons namely Eqbal Ahmad and others (respondent No. 3 to 6) came to be recorded in the revenue record. Registered sale deed dated 25.3.2010 was executed by them with respect to the property in question in favour of the respondent No. 7 namely Ashok Kumar Agarwal. On the basis of aforesaid sale deed, the name of Ashok Kumar Agarwal (respondent No. 7) was recorded in the revenue record.
10. At the very belated stage, Gaon Sabha has filed restoration application dated 24.8.1992 against the judgment and decree dated 8.10.1985, which was ordered to be dismissed in default on 17.4.1993 and against the said order, Gaon Sabha has filed restoration application dated 27.9.1993, which was also dismissed in default on 21.6.1996. Again restoration application was filed on 14.8.1996, which was allowed by order dated 14.7.1997. Being aggrieved against the order dated 14.7.1997, respondent No. 7 has filed revision, which was allowed by order dated 29.3.2004 passed by the revisional court relegating the parties before the trial court to first decide the application for the condonation of delay in filing the restoration application. Consequent to the remand order dated 29.3.2004, restoration application dated 14.8.1996 was restored to its original number but the same was dismissed in default by order dated 25.5.2015 (annexure No. 2). Against the order dated 25.5.2015, two restoration applications were filed:-
(i) Restoration application dated 15.6.2015 filed on behalf of the State.
(ii) Restoration application dated 27.6.2015 filed on behalf of the Gaon Sabha.
11. Both the aforesaid restoration applications were rejected on 5.10.2016. Being aggrieved with the said order dated 5.10.2016, a revision was preferred on behalf of Gaon Sabha, which was dismissed vide order dated 14.8.2018 passed by respondent No. 1, which is under challenge in the present writ petition.
12. Learned counsel for the petitioner has assailed the impugned orders dated 5.10.2016 and 14.8.2018, inter alia, on the grounds that disputed property belongs to the Gaon Sabha, therefore, no private person can confer his right and title over the property. Judgement and decree dated 8.10.1985 is collusive decree. Although trial court has discussed so many documents/revenue records but failed to verify the genuineness and sanctity of the aforesaid documents. All the entries referred by the trial court are not in consonance with the provisions of law. It is further submitted that while filing the restoration application, sufficient reason has been assigned for non-appearance of the petitioner but the same has illegally not been considered by the court concerned. Lastly, it is submitted that endeavour should have been made to decide the suit on merits rather than to decide it ex-parte in the absence of the petitioner. In support of his contention, counsel for the petitioner has cited the case of Bhivchandra Shankarmore Vs. Balu Gangaram More and others, 2019 6 SCC 387 and Division Bench decision of this Court in the case of Lekhi Ram @ Mula and another Vs. State of UP and others; Civil Misc. Writ Petition No. 9675 of 1989 decided on 20.12.2001, reported in 2002 R.L.T. 668.
13. Per contra, learned senior counsel for the respondent No. 7 contended that DGC (R) had appeared representing both the defendants namely State and Gaon Sabha. After judgment dated 8.10.1985, he jotted the remark of ''seen' on the margin of the order sheet dated 20.11.1985, which clearly proves that judgment in question was well within the knowledge of the DGC (R). It is further contended that there was always deliberate inaction and malafide intention at the part of the petitioner, who has moved as many as four restoration applications but was never serious to argue them on merits. Till date, judgment and decree dated 8.10.1985 has not been challenged in the regular appeal, as provided under the law. Moving restoration application, that too one after another, is nothing but an abuse of the process of law intending to harass the contesting respondents for the reasons known to the petitioner best. It is further contended that there is no illegality, perversity and ambiguity in the impugned orders passed by the respondents No. 1 and 2 so as to warrant any interference or indulgence of this Court in exercise of writ jurisdiction. The present writ petition is devoid of merits and is liable to be dismissed.
14. Carefully considered the rival submission advanced by learned counsel for the parties and perused the record on board.
15. The present writ petition is arising out of a restoration application, which was filed on behalf of present petitioner in a declaratory suit under Section 229B of UPZA Act. The suit filed by Habib Ullah (father of respondents No. 3 to 6) was decreed by judgment and decree dated 8.10.1985. After the death of Habib Ullah, names of his sons, respondents No. 3 to 6, had been recorded in the revenue record, who had executed registered sale deed in favour of the present petitioner. At a very belated stage, the present petitioner has filed four restoration applications at different stages, which were dismissed. Details of the aforesaid applications and there outcome are properly demonstrated in the following chart:
Serial No. Restoration Application dated Order dated/decided on Result
1. 24.8.1992 against judgment dated 8.10.1985 17.4.1993 Dismissed in default
2. 27.9.1993 against order dated 17.4.1993 21.6.1996 Dismissed in default
3. 14.8.1996 against order dated 21.6.1996 17.4.1997 Allowed.
4.
Revision filed by respondent No. 7 against order dated 17.4.1997 29.3.2004 Revision allowed and remanded before the trial court.
5. Consequent to the order dated 29.3.2004, restoration application dated 14.8.1996 was restored.
25.5.2015 Dismissed in default
6. Restoration application dated 15.6.2015 filed on behalf of the State 5.10.2016 Dismissed on merits
7. Restoration application dated 17.6.2015 filed on behalf of the Gaon Sabha 5.10.2016 Dismissed on merits
16. The order dated 5.10.2016 was assailed in revision, which was dismissed by the respondent No. 1 vide order dated 14.8.2018.
17. Before discussing the merits of the case, it would be befitting to consider the scope of Order IX Rule 13 of the CPC along with its UP amendment, which is quoted below:
Order IX Rule 13
13. Setting aside decree ex parte against defendant.--In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
[Provided further than no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.] [Explanation.--Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.] UP Amendment Allahabad.- In Order IX rule 13, after second proviso, insert the following proviso, namely:-
"Provided also that no such decree shall be set aside merely on the ground of irregularity in the service of summons if the Court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim."
[Vide Notification No. 4084/35(a)3(7), dated 24th July, 1926.]
18. According to the provision of restoration as enunciated under Order IX Rule 13 of CPC, a defendant against whom decree has been passed ex-parte is entitled to get the same set aside, if he could satisfy the court on the points;
(i) That summons was not duly served upon him; or
(ii) That he was prevented by sufficient cause from appearing when the suit was called upon for hearing.
19. Intending to curb the protracting litigation, the State of UP has added second proviso to Rule 13 by which any irregularity in the service of summon has not been treated to be sufficient ground for setting aside an ex parte decree if court is satisfied either that the defendant knew or he would have not for his wilful conduct known of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim. Meaning thereby, right to get an ex-parte decree set aside would be ceased to be available in a case where the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim. Accordingly, in the matter where summons have not duly been served upon the defendant and the date of hearing is not known to him but he comes to know of the proceeding well in time he can easily find out the date and put in appearance and answer the plaintiff's claim. If he, without any justification fails to take the steps to find out the date of hearing, it would be presumed that he has deliberately ignored the court proceedings. His ignorance can safely be concluded that but for his willful conduct he would have known the date of hearing in sufficient time so as to enable him to appear and answer the plaintiff's claim.
20. In the matter in hand, unfortunately, the defendant failed to satisfy any of the ingredients for setting aside the ex parte decree as enunciated under Order IX Rule 13 of the CPC. This is no the case of the defendant/petitioner that summons was not duly served upon him. Learned trial court has given a categorical finding in its judgment dated 8.10.1985 that the summons was duly served upon the defendants. Finding given by the trial court with respect to the service of summon upon the defendant has not been denied by the defendant/petitioner. Record reveals that written statement was filed by the State through DGC (R). After judgment and decree being passed by the trial court, DGC (R) has jotted the remark of "seen" on the margin of the order sheet dated 20.11.1985, which explicitly made it clear that DGC (R), who is representing State and Goan Sabha, was well aware about the judgment and decree dated 8.10.1985 passed in the suit.
21. Record reveals that all the subsequent proceedings i.e. moving the restoration applications and filing a revision were pursued by the DGC (R). Dismissal of restoration applications in default at three stages succinctly denotes the malafide intention and deliberate inaction at the part of the defendant/petitioner. No justification has been offered by the learned counsel for the petitioner as to under which circumstances, despite the service of notice, the petitioner was prevented in pursuing the suit and the restoration applications filed one after another. There is nothing on the record to show that the defendant/petitioner has ever tried to challenge the judgment and decree dated 8.10.1985 by way of filing a regular appeal. Perusal of memo of revision filed before the learned Commissioner (Annexure No. 4) and the grounds of writ petition reveals that the defendant/petitioner has tried to challenge the ex-parte decree and dismissal of the restoration applications only on the grounds of the merits of the case but no cogent reason has been assigned as to what circumstances prevailed preventing the defendant/petitioner from pursing the suit as well as restoration applications.
22. Delay caused in filing the restoration applications is also a matter of concern. Against the judgment and decree dated 8.10.1985 present petitioner has filed restoration application on 24.8.1992. Even at subsequent stages, belated restoration applications were filed. Counsel for the petitioner has failed to satisfy the Court as to under what circumstances all the restoration applications were filed at belated stage. Even for the sake of substantial justice if the delay caused in filing the restoration application be condoned, the petitioner failed to bring his case within the realm of Order IX Rule 13 of the CPC. The trial court as well as revisional court, in dismissing the restoration application vide order dated 5.10.2016 and dismissing the revision vide order dated 14.8.2018 respectively, have discussed the matter in detail and succinctly pointed out gross negligence and deliberate inaction at the part of the defendant/petitioner in pursing the suit as well as the restoration applications filed on its behalf at different stages.
23. The case of Bhivchandra Shankarmore (supra) as cited by the learned counsel for the petitioner does not come to his rescue. The facts and circumstances of the cited case Bhivchandra Shankarmore (supra) is different than that of the present matter, wherein ex-parte judgment and decree was initially set aside by the appellate court in first appeal treating it within time on the ground that defendant has availed the remedy of restoration under Order IX Rule 13 of the CPC, therefore, the period of pendency of the restoration application should be treated to be sufficient ground for the purpose of condonation of delay. The order passed by the appellate court was set aside by High Court on the ground that the remedy availed under Order IX Rule 13 of the CPC cannot be ignored, therefore, the period of perusing the remedy by filing restoration application cannot be excluded in deciding the delay in filing the appeal. Considering the aforesaid aspect of the matter, Hon'ble Supreme Court succinctly made an observation in paragraph 19 of the judgment that the time spent in pursuing the application under Order IX Rule 13 CPC is to be taken as sufficient cause for condoning the delay in filing the first appeal.
24. So far as the second cited case is concerned i.e. Lekhi Ram @ Mula (supra), it is also different from the facts and circumstances of the present case. In the aforesaid cited case, claim of plaintiff over the property of Gaon Sabha on the basis of adverse possession has been denied. This cited case has no relevance in deciding the merits of the restoration application, which is the question before this Court. Learner counsel for the petitioner, however, in his entire argument, has made emphasis on the merits of the case and tried to demonstrate that trial court has illegally decreed the suit on the basis of those revenue document which were not properly verified and tried to question the genuineness and sanctity of the aforesaid document. It will not be befitting, at this juncture, to discuss the merits of the case and consider the genuineness of the revenue records which have not been discussed and considered in the impugned orders under challenge passed in the matter arising out of restoration application. Learned counsel for the petitioner has conceded the fact as contended by the learned counsel for respondent No. 7, that no regular appeal has been filed against the ex-parte judgement and decree dated 8.10.1985. In the cited case of Bhivchandra Shankarmore (supra), Hon'ble Supreme Court has succinctly observed that in paragraph No. 10 that a conjoint reading of Order IX Rule 13 CPC and Section 96 (2) of CPC indicates that the defendant, who suffered ex-parte decree has two remedies:-
(i) either to file an application under Order IX Rule 13 of the CPC to set aside the ex-parte decree to satisfy the court that summons were not properly served or those served, he was prevented by ''sufficient cause' from appearing in the court when the suit was called for hearing.
(ii) to file a regular appeal from the original decree to the first appellate court and challenge the ex-parte decree on merits.
25. In view of the observation, as made by Hon'ble Supreme Court, remedy is still available for the petitioner to file a regular appeal against the ex-parte judgment and decree dated 8.10.1985, subject to law of limitation.
26. In this conspectus, as above, I am of the view that no satisfactory ground has been made out by the learned counsel for the petitioner for interfering the impugned orders under challenge. Counsel for the petitioner has failed to substantiate his submission in assailing the impugned orders. After considering the facts and circumstances of the present case as put forward before this Court, it cannot be said that there was no gross negligence and deliberate inaction at the part of the petitioner in challenging the ex-parte decree by way availing the remedy of moving restoration applications at belated stage. There is nothing on the record to show that summons were not duly served upon the defendant/petitioner or he was prevented by sufficient cause from appearing when the suit was called on for hearing. DGC (R) was throughout present, who has pursued the matter on behalf of Gaon Sabha at different stages.
27. Resultantly, the present writ petition fails and is dismissed being devoid of merits and misconceived. There is no order as to the cost.
Order Date :- 4.12.2021 vinay