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2013 DIGILAW 16 (ALL)

MOHD. RAIS v. STATE OF U. P.

2013-01-03

B.AMIT STHALEKAR

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JUDGMENT Hon’ble B. Amit Sthalekar, J.—Rejoinder-affidavit filed by learned counsel for the petitioner is taken on record. By this writ petition the petitioner is challenging the order dated 16.9.2000 passed by the Sub Divisional Officer, Manjhanpur, District Kaushambi by which the Restoration Application filed by the respondent No. 4, the Gaon Sabha, Babura Kaushambi was entertained and the stay order was passed and the operation of the decree dated 11.8.1995 was stayed. By the impugned order dated 3.10.2000 revision filed by the petitioner against the order dated 16.9.2000 has also been rejected. 2. The facts of the case, in brief, are that the petitioner is stated to be the owner in possession over the plot Nos. 207,393,22/5 and 305 situated in village Manjhanpur, Tehsil Manjhanpur, District Kaushambi on the basis of the lease executed by the then Zamindar. The proceedings for consolidation under Section 4 of the U.P. Consolidation of Holdings Act were initiated in the said village. The petitioner filed an objection under Section 9A (2) for the declaration of the Bhumidhari rights over the disputed plots before the Consolidation Officer, Manjhanpur. The Gaon Sabha appeared in the proceedings for contesting the objections. The objection of the petitioner was allowed and he was declared Bhumidhar of the disputed plots by the judgment and order dated 5.4.1982. It is also stated that the order dated 5.4.1982 became final between the parties inasmuch as the same was never challenged by the Gaon Sabha or by the State Government. However, due to fault of the officials the order dated 5.4.1982 could not be incorporated in the revenue records and, therefore, when the village was notified under Section 52 of the U.P. Consolidation of Holdings Act. The plots in question continued to be shown in the ownership of the Gaon Sabha, respondent No. 4. In the consolidation proceedings the plots in question were renumbered as plot Nos. 318/348/159 and 403. 3. When the land continued to be shown in the name of the Gaon Sabha in spite of the order dated 5.4.1982, the petitioner filed suit for declaration under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act in which the State of U.P. and the Gaon Sabha were impleaded as defendants. It is stated that respondents also filed their written statement. It is stated that respondents also filed their written statement. Trial Court after hearing the parties decreed the petitioner’s suit and declared him to be the Bhumidhar of the plot in question by judgment and order dated 11.8.1995. Aggrieved by the said judgment an appeal was filed by the Collector, Kaushmbi as well as the Gaon Sabha before respondent No. 2, the Additional Commissioner, Allahabad Division, Allahabad. This appeal was dismissed by the judgment and order dated 23.4.1998 and thus the decree dated 11.8.1995 stood confirmed. This judgment dated 23.4.1998 was never challenged by the State Government or by the Gaon Sabha and the decree dated 11.8.1995 thus became final between the parties. 4. However, subsequently it is alleged that respondents were trying to oust the petitioner from the plots in question. Therefore, the petitioner filed a Writ Petition No. 32750 of 2000, Mohd. Rais v. State of U.P. and others, in which counter-affidavit was called and the writ petition is stated to be still pending. However, the Gaon Sabha moved an application on 14.9.2000 under Order 9 Rule 13 C.P.C. for setting aside the decree dated 11.8.1995 alongwith a stay application. This application was allowed by the respondent No. 3, Sub Divisional Officer, Manjhanpur, District Kaushambi by the impugned order dated 16.9.2000 without issuing notice to the petitioner and an injunction was also granted. When the petitioner came to know about the said order he preferred a revision before the Additional Commissioner, Allahabad Division, Allahabad, which was dismissed by the impugned order dated 3.10.2000. Hence the present writ petition. 5. I have heard Sri Sheo Ram Singh, learned counsel for the petitioner and Sri Mata Prasad, learned Additional Chief Standing Counsel appearing for the respondents. The submission of learned counsel for the petitioner is that once the decree dated 11.8.1995 had become final between the parties inasmuch as the appeal preferred by the respondent No. 4 had been dismissed by the Additional Commissioner, Allahabad Division, Allahabad dated 23.4.1998, which was never challenged by the respondent Nos. 1 and 4, thereafter no application for recall of the decree dated 11.8.1995 was maintainable. Learned standing counsel submitted that decree dated 11.8.1995 was ex parte, therefore, recall application was maintainable. Order 9, Rule 13 CPC and the explanation thereto reads as follows : “Rule 13. 1 and 4, thereafter no application for recall of the decree dated 11.8.1995 was maintainable. Learned standing counsel submitted that decree dated 11.8.1995 was ex parte, therefore, recall application was maintainable. Order 9, Rule 13 CPC and the explanation thereto reads as follows : “Rule 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........ Provided further........... [Explanation.—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 that ex parte decree.] 6. From a perusal of the impugned order and documents on record as well as the statutory provisions of the Explanation to Order 9, Rule 13 CPC, it is noticed that once the appeal preferred by the respondent Nos. 1 and 4 against the decree dated 11.8.1995 had been dismissed by the judgment and order dated 23.4.1998, the decree dated 11.8.1995 had become final between the parties and, thereafter, no application seeking recall or restoration of the said decree was maintainable before the trial Court. Matter had already been thrashed out upto the stage of appeal. In the circumstances, the entire proceedings seeking restoration of the suit proceedings and for setting aside the decree dated 11.8.1995 were absolutely without jurisdiction and were not maintainable. In the circumstances, the writ petition deserves to be allowed and is accordingly allowed. The impugned orders dated 16.9.2000 and 3.10.2000 are quashed. The restoration proceedings before the respondent No. 3 on the application dated 14.9.2000 are quashed. There shall be no order as to costs. —————