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2003 DIGILAW 2308 (ALL)

Moti Lal v. State Of U. P.

2003-09-26

S.N.SRIVASTAVA

body2003
JUDGMENT : S.N. Srivastava, J. In this petition the Petitioner is grieved by the twin orders/judgment dated 24.4.2003 and 28.8.2003 rendered by Additional Commissioner, Gorakhpur Division, Gorakhpur and Board of Revenue respectively. 2. The facts forming background to the present petition are that the Petitioner instituted a declaratory suit u/s 229B of the U.P.Z.A. and L.R. Act concerning plot Nos. 9, 96, 125 and 156 which culminated in being decreed ex parte. Opposite parties 6 and 7 who are transferees from opposite-party Nos. 8 to 12 prior to institution of the suit, preferred application u/s 151, Code of CPC for setting aside ex parte decree dated 19.2.2001, thereby claiming their real title on the dint of a registered sale deed executed on 27.11.1997 by Defendants herein arrayed as Opposite Parties 8 to 12. The aforesaid application did not find favour and was rejected by the Assistant Collector. Aggrieved, the Opposite Parties 6 and 7 preferred a revision which was allowed by the revisional authority and in consequence, the ex parte decree was set aside after condoning delay in filing application. The direction embodied in the impugned judgment was to the effect that the trial court would permit impleadment of transferees as Defendants in the suit and shall afford opportunity to them to adduce evidence and to take the suit to some logical end after hearing the parties in accordance with law. This order received affirmance of the Board of Revenue vide the order dated 28.8.2003. 3. I have heard learned Counsel for the parties and also the learned standing counsel. The learned Counsel for the Petitioners premised his submission by stating that application for impleadment could not be moved u/s 151, Code of CPC inasmuch as other relevant provisions could be involved in aid to seek recall of the ex parte decree and their impleadment. In connection with this proposition, he referred to the provisions contained in Order IX Rule 13, Code of CPC as also the Order I Rule 10, Code of CPC In the ultimate analysis, he propounded that application u/s 151, Code of CPC which was moved for twin purposes of seeking setting aside ex parte decree and impleadment, could not have been entertained as it was not maintainable. Per contra, learned standing counsel, lent countenance to the judgment of the revisional authority as affirmed by the Board of Revenue stating that the application was rightly made and entertained by both the authorities below. 4. In order to appreciate the controversy in proper perspective, I feel inclined to acquaint myself with the provisions contained in Order I, Rule 10, Code of CPC and also the Order IX Rule 13, C.P.C., Order I, Rule 10 (2) envisages that the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. Likewise, Order IX, Rule 13, Code of CPC envisages that 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. The proviso to the aforesaid envisages 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. Further the proviso added thereto provides that 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 Plaintiffs claim. Further the proviso added thereto provides that 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 Plaintiffs claim. The Explanation to the aforesaid Order IX Rule 13, Code of CPC emphasises that where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the Appellant has withdrawn the appeal no application shall lie under this rule for setting aside the ex parte decree. From a conjoint reading of the aforesaid provisions it would be eloquent that an application under Order I, Rule 10, Code of CPC could be filed only in a pending proceeding. Likewise, an application under Order IX Rule 13, could be preferred by a person who was arrayed as Defendant in a suit and if a decree comes to be passed ex parte against him. It brooks no dispute that the opposite parties 6 and 7 were transferees by means of valid sale deed executed in their favour by Respondents 8 to 12 prior to the institution of suit. It is also obvious and bears no repudiation that transferees were neither impleaded as Defendants nor proceedings were pending when they gained knowledge that the Plaintiffs had obtained ex parte decree against their transferors and in this perspective, the conclusion is inescapable that real title of land in suit vested in them through sale deed and they validly filed application u/s 151, Code of CPC which can be invoked in aid being applicable to proceeding u/s 229B of the U.P.Z.A. and L.R. Act. The excerption of Section 151, Code of CPC as below would lend cogency to the view that Section 151 of the Code of CPC can be called in aid for the purpose of the controversy involved in this petition: “Section 151, C.P.C.-Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” Section 341 of the U.P.Z.A. and L.R. Act is also referred to and excerpted below which I consider essential to elucidate the point under consideration. “341. Application of certain Acts to the proceeding of this Act.-Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1870 (VII of 1870), the Code of Civil Procedure, 1908 (V of 1908), and the (Limitation Act, 1963) (XXXVI of 1963), (including Section 5 thereof) shall apply to the proceedings under this Act.” It may be additionally emphasised though not necessary in the above perspective here that even if it be assumed otherwise that Section 151, Code of CPC could not be invoked in aid for the purpose, it is well-nigh settled that if a court/authority is competent to entertain an application/petition under law, such application cannot be rejected merely on the premises that it has been preferred citing wrong provision and the authority concerned is fully competent to pass appropriate orders on such application in accordance with law although I would hasten to emphasise that application u/s 151, Code of CPC was rightly made and entertained in the present case. Yet another aspect which I want to dwell upon to elucidate on the point in dispute is that it can also not be gainsaid that an application could be moved u/s 151, Code of CPC if there is no provision under the CPC for seeking setting aside of an ex parte decree in case of failure of justice. In the instant case, the opposite parties 6 and 7 being transferees on the basis of sale deed, were in effect, aggrieved in the fact situation of the case inasmuch as they had not been impleaded in the suit which had been instituted arraying transferors alone namely opposite parties 8 to 12. In the instant case, the opposite parties 6 and 7 being transferees on the basis of sale deed, were in effect, aggrieved in the fact situation of the case inasmuch as they had not been impleaded in the suit which had been instituted arraying transferors alone namely opposite parties 8 to 12. In the fact situation, securing decree without impleading the opposite parties 6 and 7, who were the necessary parties, amounted, broadly speaking, to practicing fraud and inveigling the Court in passing ex parte decree by mere impleadment of persons who were not real title holders. The view that I am taking in this case receives fortification from the decision in Sheo Bachan Pandit Vs. Ram Dhari Gir and Another, AIR 1962 All 623 ; Rakesh Sugar Tail Factory and Others Vs. U.P. Financial Corporation, AIR 1984 All 23 ; Yudhishter Lal Vs. Fateh Singh and Another, AIR 1929 All 721 and Surajdeo Vs. Board of Revenue, U.P., Allahabad and Others, AIR 1982 All 23 . All the aforesaid decisions are the decisions in point and I do not propose to refer to the ratio in prolix and encumber this judgment and confine myself to saying that the aforesaid decisions are the decisions in point and lend fortification to the view I am taking in this petition. 5. In summing up the above discussion, it may be noticed here that the opposite parties 6 and 7 had not been impleaded in the suit nor proceedings were pending when application u/s 151, Code of CPC was moved for setting aside the ex parte decree and by this reckoning, neither Order IX Rule 13, C.P.C., nor Order I Rule 10, Code of CPC can be invoked for application. The learned Counsel for the Petitioners has not drawn attention to any other provisions either in Code of CPC or in U.P.Z.A. and L.R. Act to drum home his point under which application for setting aside of ex parte decree could be moved or filed by a person who was not Defendant in a suit. In my firm opinion, the application was rightly made u/s 151, Code of CPC which was rightly entertained, allowed and affirmed by the authorities. I do not find any convincing ground to hold the finding recorded by the courts below being one suffering from perversity or illegality or error apparent on the face of the record. In my firm opinion, the application was rightly made u/s 151, Code of CPC which was rightly entertained, allowed and affirmed by the authorities. I do not find any convincing ground to hold the finding recorded by the courts below being one suffering from perversity or illegality or error apparent on the face of the record. As a matter of fact, the orders impugned have been passed in accordance with law and there is no observable flaw or error warranting interference. 6. In the result, the petition is devoid of merit and is accordingly dismissed. In the facts and circumstances, it need be clarified that parties will appear before the trial court which will implead transferees and permit them to file written statement and will endeavour to decide the suit afresh on merits in accordance with law. It needs hardly be said that the parties shall be given reasonable opportunity to have their say in the case.