Allahabad High Court
Arvind Singh vs State Of U.P. And 38 Others on 26 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:148835 Court No. - 51 Case :- WRIT - C No. - 4330 of 2023 Petitioner :- Arvind Singh Respondent :- State Of U.P. And 38 Others Counsel for Petitioner :- Manoj Kumar Counsel for Respondent :- C.S.C.,Rishikesh Tripathi Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Rakesh Pathak, Advocate holding brief of Mr. Manoj Kumar, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Mr. Rishikesh Tripathi, learned counsel for contesting respondent no.24.
2. The instant petition has been filed for the following reliefs:
"i. issue a writ, order or direction in the nature of certiorari for quashing the order dated 1.12.2022 passed by Commissioner, Jhansi Division, Jhansi (annexure no.16) in Revision No.844 of 2022 (Computer Case No.C202206000000844) and order dated 3.8.2022 passed by Sub-Divisional Magistrate (Judicial), Jhansi (annexure no.14) in Case No.RST00069 / 2019 (Computer Case No.D201906370000069). ii. issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case. iii. Award the cost of present writ petition in favour of the petitioner."
3. Brief facts of the case are that one Smt. Ren Kunwar has filed a Suit No. 91 of 1992-93, under section 229B of U.P.Z.A. and L.R. Act on 10.12.1992 in respect of Khata No.2 situated at Village- Hansari Grid, Tehsil and District- Jhansi. Plaintiff Smt. Ren Kunwar has died on 5.1.1993 during pendency of suit, hence petitioner was substituted as plaintiff on the basis of will-deed executed by Smt. Ren Kunwar in favour of petitioner. The aforementioned suit was decreed vide order dated 22.8.1996. On restoration application dated 24.1.1997 filed on behalf of defendant nos. 1, 2 and 3, judgment and decree dated 22.8.1996 was set aside by trial Court. On 6.10.1998 defendant nos. 1 to 7 have filed their written statement. On 11.12.1998 issues were framed in the suit on the basis of the pleading of the parties. On 1.10.2018, one Khursheed Manjar has filed an impleadment application in the aforementioned suit. Plaintiff also filed an impleadment application in the aforementioned suit. Trial Court vide order dated 14.1.2020 allowed both the impleadment application, accordingly, newly impleaded defendant no. 9A filed his written statement on 6.2.2020, defendant no.19 filed his written statement on 17.3.2020 and defendant nos. 22, 23 and 24 have filed their written statement on 15.2.2021. Trial Court on the basis of the fresh pleading of the parties framed additional issues on 22.2.2021. Defendant Nos.20 and 21 have filed their written statement on 26.3.2021 and filed an application dated 24.6.2021 for framing additional issues as well as prayed that issue nos. 1, 2 and 3 may be heard as preliminary issue. Trial Court vide order dated 31.12.2021 allowed the application dated 24.6.2021 in part and only issue as to whether suit is time barred was framed as additional issue. On 3.6.2022 defendant no.9A filed an application in the suit for framing issue on the basis of his written statement filed on 6.2.2020. Trial court vide order dated 3.8.2022 allowed the application dated 3.5.2022 and framed additional issue. Against the order dated 3.8.2022 petitioner filed a revision before Commissioner which was heard and dismissed vide order dated 1.12.2022, hence this writ petition.
4. Learned counsel for the petitioner submitted that the suit under Section 229B of U.P.Z.A. & L.R. Act filed by the petitioner was decreed on 22.8.1996. He further submitted that against the judgment dated 22.8.1996, restoration / recall application was filed and the suit has been restored to its original number. He next submitted that after restoration of the suit the issues were framed in the year 1998. He also submitted that subsequently on 22.2.2021 and 31.12.2021 additional issues were framed, as such, framing of further additional issue on fourth time is abuse of process of law. He further submitted that already relevant issues were framed in the suit, as such, the repeated application for framing issue is nothing but to delay the proceeding of the suit. He further placed reliance upon the order XIV Rule 5 of the Code of Civil Procedure in order to demonstrate that the impugned order passed for framing additional issue is illegal.
5. On the other hand, Mr. Rishikesh Tripathi, learned counsel for the contesting respondent no.24 submitted that respondent no.24 was impleaded in the suit under Section 229B of U.P.Z.A. & L.R. Act on 14.1.2020 and written statement was filed on the behalf of respondent no.24 on 6.2.2020. He further submitted that after the impleadment and filing of statement by respondent no. 24,, the additional issues were framed by the Court on 3.6.2022 recording reason in the order dated 3.6.2022 which is sufficient compliance of the provisions contained under order XIV Rule 5 of Civil Procedure Code. Learned counsel for the contesting respondent no.24 further submitted that earlier the issues, which were framed were based on pleading of respective defendants but the additional issues framed under the impugned is based on the written statement of defendant no. 9A of the suit / respondent no.24 of the instant petition, as such, no interference is required against the order framing additional issues in the pending suit, under Section 229B of U.P.Z.A. & L.R. Act. He next submitted that revision filed by the petitioner has been rightly dismissed.
6. I have Considered the argument advanced by learned counsel for the parties and perused the record.
7. There is no dispute about the fact that the suit under Section 229B of U.P.Z.A. & L.R. Act filed by the petitioner is pending before the trial Court. There is also no dispute about the fact that respondent no.24 was impleaded in the pending suit in the year 2020 and after filing of the written statement by the respondent no.24, the additional issues have been framed in the pending suit. There is also no dispute about the fact that revision filed by the petitioner has been also dismissed.
8. In order to appreciate the controversy the perusal of Order XIV Rule 5 of Civil Procedure Code will be necessary which is as under:-
Order XIV Rule 5 of Civil Procedure Code "[5. Power to amend and strike out, issues?(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.]"
9. The impugned order dated 3.8.2022 passed by the trial court framing additional issues in the pending suit is also relevant for perusal which is as under:-
"????????? ???????????? (???????) ?????? ?????, ????? ?????, ?????? ????
??? ??????? RST/00068/2019 ???????????? ??? ???????- D201906370000069 ??????? ?????? ???? ???????????? ???
???????? ?????- 229(?), ????????- ??????????????????? ???????, 1950 (2) ???? ???????? ??? ???????? ?? ?? ?????? ???? ?? ?? ???????? ?? ???????? ??? ?????? ???????? ????? ?? ????????? ?? ?????? ?? ?? ???? ??? ???????? ?? ????? ???????? ????? ???? ??????? ???? ?????????? ????? ???????? ?? ??? ??????? ??????? ??? ??? ???????? ??? ?????? ??????????? ????????? ?? ????????? ???? ?????? 03.06.2022 ??????? ???? ???? ??????? ????????? ???? ???? ??? ???????? ??? ??????
1- ???? ?????? ????? ???? ?? ??? ????? ???? ??? ???? ????????? ?????? ???? ?? ?? ???? ??????? 2- ???? ???????? ?? ??? ?????? ???? ?? ???? ????????? ??????? ?? ??? ???? ????? ?????? ?????? ???? ?? ????? ????? ???? ???? ??? ?????????? ?? ????? ????? ??? ??? ?? ???? ??????? 3- ???? ???? ????? ????????? ?????? 03.12.1992 ?? ???? ???????? ?? ??? ??? ?? ???? ???? ?? ?? ????? ???? ???? ???? ?????? ?? ???? ???? ???? ??? ??? 4- ???? ??? ????? ?? ??????? ?? ??????? ????? ???, ??? ???? ?? ???????
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10. Perusal of order dated 3.8.2022 as quoted above fully demonstrate that , the additional issues, which have been framed after the impleadment and filing of written statement of respondent no.24 are relevant for deciding the controversy involved in the matter, as such, there is no error in framing the additional issues in the pending suit. The impugned order has been passed taking into consideration the provision contained under order XIV Rule 5 of Civil Procedure Code.
11. Considering the additional issues framed as well as finding recorded by the trial Court as well as the revisional Court, no interference is required in the matter.
12. The writ petition is dismissed, accordingly.
13. However, trial Court is directed to decide the suit after giving opportunity to parties to lead evidence on the issues framed in the suit, the suit will be decided in accordance with law, expeditiously preferably within a period of six months from the date of production of certified copy of this order before trial Court.
Order Date :- 26.7.2023 Rameez