Research › Browse › Judgment

Allahabad High Court · body

1982 DIGILAW 1088 (ALL)

Krishna Narain v. Kalidin

1982-09-22

KAUSHAL KISHORE

body1982
JUDGMENT Kaushal Kishore, Member - This revision petition and the connected reference arise out of a suit u/Sec. 229-B/209 of the U.P.Z.A. L.R. Act filed by the revisionist plaintiff Krishna Narain and others. The suit was decreed ex parte on 9.5.75 and on application of Kalidin the ex parte decree was set aside by order of the learned trial court dated 18 2.1977. Against this order the revisionist went up in appeal before the learned Additional Commissioner who dismissed the appeal by his order dated 24.10.1977, holding that the prayer in the end of the appeal for treating it as a revision petition if an appeal does not lie was an addition made unauthorisedly and it was not a fit case for being heard and decided as a revision petition and also the appeal itself was not maintainable. Then, the revisionist filed the present revision petition against that order of the learned Additional Commissioner and a revision petition before the learned Additional Commissioner also which was entertained by the learned Additional Commissioner after condoning the delay and a recommendation was made that the order of the learned trial court dated 18.2.1977 may be set aside and the case be remanded for deciding the restoration application again in accordance with law. 2. I have heard the learned counsel for the parties and have also perused the record. 3. During the pendency of the revision petitions opposite party number I Kalidin has expired and the application for substitution of his heirs being within time is allowed. 4. Taking up the revision first, it may be observed that the appeal before the learned Additional Commissioner was not maintainable and it should have been treated as a revision petition. However, the court appears to have acted under some misconception that the conversion of the appeal into revision should be considered strictly and technically in accordance with the prayer while it is the settled law that if the appeal is not maintainable the court should automatically treat it as a revision and hear and decide the same. In fact even a revision filed within time can be converted into an appeal on request. Therefore, by passing the order dated 24.10.1977 the learned Additional Commissioner took away both the remedies from the revisionist. By not converting the appeal into a revision, he failed to exercise jurisdiction vested in him. In fact even a revision filed within time can be converted into an appeal on request. Therefore, by passing the order dated 24.10.1977 the learned Additional Commissioner took away both the remedies from the revisionist. By not converting the appeal into a revision, he failed to exercise jurisdiction vested in him. However, later on the revisionist filed a revision with prayer to condone the delay and this was entertained by first appellate court after due condonation of the delay. In view of this revision now coming before the Board as reference this revision petition against the order dated 24.10.1977 becomes infructuous and will be decided along with and in accordance with the reference. 5. The learned counsel for the applicant has argued that the learned Additional Commissioner has found that there was forgery in the record while the restoration application was being heard before the trial court and unauthorised cuttings, over writing etc., existed on the order-sheet and the order passed on 18.2.1 77 by the learned trial court, in the circumstances, loses its authenticity and requires to be set aside. He argued that the learned Additional Commissioner gave no finding on the relevant points of the revision petition including a finding about the service on the defendant before the ex parte decree was passed. The counsel further argued that the learned Additional Commissioner gave no finding on the relevant points of the revision petition including a finding about the service on the defendant before the ex parte decree was passed. The counsel further argued that instead of recommending the restoration application to be remanded be should have recommended that the application be rejected outright. The learned counsel argued that there was personal service on all the defendants except defendant no. 5. The Vakalatnama on behalf of the defendants was filed on 23.7.1974, Thereafter the case was adjourned on several dates and since the defendants had already appeared in the case the limitation for restoration application would count from the date of the ex parte decree dated 9.5.1975. He further argued that no explanation of the delay was given nor any application for condonation of the delay was there. He further argued that no explanation of the delay was given nor any application for condonation of the delay was there. The only reason for filing the restoration application on 9.6.1976 with such delay of 13 months was that there was no service and the defendants had knowledge on 1.6.1976 However, since they had been served, the reason was not acceptable and the restoration application could not be rejected. 6. The learned counsel for the opposite party argued that the Vakalatnama on behalf of the defendants was mutilated and creates suspicion. He argued that the counsel for Udairaj was also the counsel for the four other defendants. He argued that the service, filing Vakalatnama and the application for adjournment all were carried out on 23.7.1974 and the application was also granted on the same day. He further argued that this indicated that there was no actual service on the defendants. He further argued that the learned trial court had given circumstantial facts to indicate that the summons had not been served and the learned Additional Commissioner has not looked into these findings. He argued that till 18.1.1977, the opposite party (the present revisionist) had knowledge, thereafter the restoration application remained for decision by the trial court and was decided on 18.2.1977. 7. The learned counsel for the applicant has argued that irrespective of the doubtful circumstances in which the order dated 18.2.1977 was passed, the learned trial court did not look into the evidence on record before passing the order since the trial court file was sealed on 14.7.1976. He further argued that there was a dispute of the revisionist with the presiding officer on account of some unfair demand as contained in the ground number 6 of the revision petition. This however, should not influence the decision of these revision petitions which concern only illegality or material irregularity in the exercise of the jurisdiction. 8. From the order dated 18.2. 1977, it becomes evident that the learned trial court has considered the defect in service of summons on Salik Ram and Mullu but failed to consider the service on other defendant. He has incorrectly mentioned that Kalidin, Ram Nath, Hit Lal and Kanhai Lal were not served, because of the sealed file which remained sealed from 14.7.1976 to the date of hearing in the Board on 10.9.1982 when it was opened and taken out of the sealed envelope. He has incorrectly mentioned that Kalidin, Ram Nath, Hit Lal and Kanhai Lal were not served, because of the sealed file which remained sealed from 14.7.1976 to the date of hearing in the Board on 10.9.1982 when it was opened and taken out of the sealed envelope. I have looked into the application of the opposite party Bam Nath in which he had requested that there are some forged papers which Krishna Narain and others may cause to disappear and so they may be sealed. The learned counsel for the opposite party Kalidin and others has not shown nor argued about any forgery in these papers after the file was taken out of the sealed envelope. The learned counsel for the applicant has argued that on the vakalatnama the thumb impressions of the six contesting defendants exist and the signatures of the counsel Pt. Chintamani Misra dated 23.7.1974 also exist. Six summons having report of the personal service with thumb impressions of Kanhai, Ram Nath, Kalidin, Hit Lal, Hriday Ram and Jhoorey were also found in this file. There is no finding of the learned trial court that service was forged but that there was no service of summons. Obviously, the trial court based its finding on part file only and did not take into account the other part which was within the sealed envelope for this reason, this finding was without jurisdiction. 9. The objection of Krishna Narain and others that the restoration application was time barred was ruled out by the learned trial court on the misconception that the defendants had no information at all. He relied on the defendant's version that they learnt of the ex parte decree on 1.6.1976 and so did not consider the necessity of any explanation for the delay, justification for the long delay and the need of condonation of this delay. In view of the factual inaccuracy in the consideration by the learned trial court, it had no jurisdiction to hold that the application was within time and also had no jurisdiction to allow the application. On looking into the order sheet of this file I find considerable cuttings, over writings and unjustified nothings on the last two pages of the order-sheet including the crossing out the vacant space after the order sheet of 18.1.1977. There is no reason why no order sheet on 19.1.1977 and thereafter was written. On looking into the order sheet of this file I find considerable cuttings, over writings and unjustified nothings on the last two pages of the order-sheet including the crossing out the vacant space after the order sheet of 18.1.1977. There is no reason why no order sheet on 19.1.1977 and thereafter was written. There is no doubt that the order to set aside the ex parte decree and of restoration of the suit passed on 18.2.1977 was without jurisdiction in view of the above finding. It may further be observed that even according to the allegations of the opposite party, they had got the file ex parte decree inspected and thereafter gave the restoration application. But the allegations of forgery, by them as contained in para 5 of the restoration application relate only to the order sheet, the vakalatnama and the adjournment application but there is no allegation that the service of summons was forged. Since these summons were sealed along with certain other papers at the instance of the opposite party Ram Nath and others, there is no question of doubting the authenticity of the service of these summons. The learned trial court while passing the order on the restoration application, had to give a proper finding in respect of the ingredients contained under rule 13 of the Order IX of the C.P.C. and unless he was satisfied on these ingredients, the restoration order would be without jurisdiction. For this reason the order of the learned trial court dated 18.2.1977 is liable to be set aside and the restoration application deserves to be rejected. 10. Accordingly the two revision petitions are allowed, the order of the learned trial court dated 18.2.1977 is set aside and the restoration application dated 9.6.1976 stands rejected. 11. This order will govern revision petition no. 6 of 1977-78/Faizabad and reference no. 239 of 1978-79/Faziabad.