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2012 DIGILAW 471 (ALL)

RAJESH RAWAT v. DEPUTY DIRECTOR OF CONSOLIDATION

2012-02-23

A.P.SAHI

body2012
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri Ashwini Kumar Mishra learned counsel for the petitioner and Sri Vinod Sinha for the respondent No. 4. 2. This litigation has a chequered history in relation to allotment of chaks in proceedings under the U.P.C.H.Act, 1953. 3. The objections filed by the petitioners were allowed by the Consolidation Officer on 4.6.2008.While allowing the objections the Consolidation Officer allotted plot Nos. 928 and 929 to the petitioners as well. The petitioners were aggrieved and they filed an appeal to that extent which was rejected on 7.11.2008. Two revisions were filed one by Bhuley Singh and the other by Prakasho Devi. The petitioners at the stage of the appeal were represented by one Jai Prakash Yadav, Advocate. Jai Prakash Yadav also represented Bhuley Singh and the revision which was filed on his behalf was through Jai Prakash Yadav inspite of the fact that the petitioners were the respondents in the said revision. The revision was filed by Jai Prakash Yadav on behalf of Prakasho Devi also where the petitioners were respondents. The revision was allowed on 27.11.2009. 4. Two restoration applications were filed in both the revisions and the petitioners also filed their revision against the order dated 7.11.2008. These restoration applications and the revision were heard and orders were reserved thereon but dates came to be fixed thereafter and ultimately the order sheet which has been filed indicates that the parties entered into a compromise on the strength whereof the revision and the restoration application filed by the petitioners came to be disposed of vide order dated 20.5.2010. 5. Learned counsel for the petitioners contends that these entire proceedings resulted in a serious prejudice to the petitioners on account of the mischief played by Jai Prakash Yadav the Advocate concerned who appeared for both sides and accordingly the petitioners through a different counsel Sri Komal Singh filed a restoration application on 17.6.2010. This restoration application was dismissed in default on 26.11.2010. A recall application was filed by the petitioners on 19.4.2010 which was allowed and the order dated 26.11.2010 was set aside allowing the parties to be heard on the application dated 17.6.2010. 6. This restoration application was dismissed in default on 26.11.2010. A recall application was filed by the petitioners on 19.4.2010 which was allowed and the order dated 26.11.2010 was set aside allowing the parties to be heard on the application dated 17.6.2010. 6. Sri Mishra learned counsel for the petitioners contends that this entire fraud was narrated in the application dated 19.4.2011, and the fact that the compromise was an out come of the fraud, had also been indicated therein which application was allowed on 4.11.2011. He therefore submits that the compromise had been challenged and the same ought to have been scrutinized in the light of the aforesaid facts which has not been done, hence the impugned order in the present writ petition is vitiated. 7. Sri Mishra learned counsel for the petitioners further contends that the son of Bhuley Singh is a practicing lawyer at Bulandshahr who was also instrumental in exercising his influence to perpetuate fraud and manipulation done including the alleged order on the compromise dated 20.5.2010. Sri Mishra submits that fraud vitiates all solemn proceedings and the very compromise which had been made the basis of the order dated 20.5.2010 being fraudulent, all proceedings fall through. The manner in which the order came to be passed therefore entitles the petitioners for relief. 8. Sri Vinod Sinha learned counsel for the respondent No. 4 submits that there is no challenge to the compromise and the order in the application dated 17.6.2010 and even otherwise no evidence was led to demonstrate that the compromise was fraudulent or the order dated 20.5.2010 was manipulated. The allegation with regard to the counsel who had appeared for both parties and who had allegedly manipulated the orders passed, was never called upon in the witness box to adduce any evidence or give any testimony in relation thereto. He submits that in the absence of any evidence fraud cannot be assumed unless it is established on the basis of evidence on record. 9. Having considered the aforesaid submissions the application dated 17.6.2010 has been placed on record as Annexure 15 to the writ petition I have perused the same and the said application no where disputes the factum of the compromise which culminated into the passing of the order dated 20.5.2010. 9. Having considered the aforesaid submissions the application dated 17.6.2010 has been placed on record as Annexure 15 to the writ petition I have perused the same and the said application no where disputes the factum of the compromise which culminated into the passing of the order dated 20.5.2010. To the contrary the order dated 20.5.2010 has been criticized on merits contending that the claim of the petitioners has not been considered and therfore the order dated 20.5.2010 was erroneous and was even otherwise ex parte. No allegation was made in relation to the compromise or against the counsel Sri Yadav. 10. Sri Mishra learned counsel for the petitioner has vehemently urged that this fact in relation to the genuineness of the compromise, has been referred to in the application which was subsequently filed for restoring the case and which was allowed, namely the application dated 19.4.2011. He has invited the attention of the Court to para 12 and the other paras of the said application and contends that these allegations were on record yet the Deputy Director of Consolidation has failed to advert to the same. 11. The argument appears to be attractive at first flush but cannot be accepted as the said application stood disposed of on 4.11.2011 where after the previous application dated 17.6.2010 proceeded for consideration on merits. If the petitioners were relying on any such averment as has been pointed out in the said application, then it was the duty of the petitioners or their counsel to have successfully amended the pleadings of the application dated 17.6.2010 or file an affidavit or even made a request to the Court for leading evidence on the allegation of fraud in respect of the compromise which forms the basis of the order dated 20.5.2010. The petitioners or their counsel do not appear to have made any effort in this regard. The principles of Order 23, Rule 3-A now as amended in the Civil Procedure Code clearly require that the party is to approach the same Court in case a compromise had been entered into and accepted by the Court on the ground of fraud. The petitioners did file the application on 17.6.2010 but did not either raise any pleading nor did the petitioners lead any evidence to that effect. The petitioners did file the application on 17.6.2010 but did not either raise any pleading nor did the petitioners lead any evidence to that effect. In the absence of the same the allegations about the compromise before this Court for the first time cannot be appreciated. 12. An affidavit in support of the application dated 19.4.2011, applying the principles of order 19 C.P.C., is not evidence by itself unless it is supported by any evidence under the Indian Evidence Act, 1872. Apart from this, no effort has been made on behalf of the petitioner to take any action against Sri Jai Prakash Yadav the counsel against whom allegations have been made before the disciplinary authority under the Bar Council of India Act. In the absence of any such steps having been taken the contention before this Court for the first time in the exercise of jurisdiction under Article 226 of the Constitution of India cannot be entertained. 13. Accordingly I see no reason to interfere with the impugned order which has been passed on the basis of the compromise dated 20.5.2010. There is no merit in this petition and is accordingly dismissed. ———————