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2013 DIGILAW 2340 (ALL)

Rajkali v. State of U. P. and Others

2013-09-18

SANJAY MISRA

body2013
Sanjay Misra,J.:- Heard Sri K.S.Mishra, learned counsel for the petitioner and learned Standing Counsel for the respondent no.1. Notice need not be issued to the respondents in view of the order being passed herein. 2. The petitioner is plaintiff of Suit No. 1298 of 2004 (Raj Kali Vs. Ram Dular and others) and is aggrieved by the order dated 27.08.2008 passed by the trial court whereby issue no.8 and issue no.7 have been decided against him by the impugned order dated 27.08.2008. Such issues related to bar of Suit under Section 331 of the U.P. Zamindari Abolition and Land Reforms Act and Section 49 of the U.P. Consolidation of Holdings Act. Both the issues have been decided against the petitioner the suit has been held to be barred under the above said provisions. Against the said order, the petitioner has preferred a Civil Appeal No. 130 of 2008 (Raj Kali Vs. Ram Dular and others) which is still pending. As such when the impugned order dated 27.08.2008 is subject matter of Appeal No. 130 of 2008 filed by the petitioner, this writ petition cannot be maintained, since the petitioner is availing parallel remedy at two different forums against the same impugned order. 3. In view of the aforesaid circumstances, the relief claimed for against the impugned order dated 27.08.2008 passed by the trial court on issues no. 7 and 8 cannot be granted by this Court in this writ petition. 4. The second relief claimed in this writ petition is against the impugned order dated 10.07.2013, whereby the appellate court has dismissed the application 19Ga of the appellant petitioner filed under Order XLI Rule 27 of the Code of Civil Procedure. Learned counsel for the petitioner has submitted that although there is no mention of the sale deed dated 27.01.2006 in the plaint nor any relief has been sought against the said sale deed, the additional document which the petitioner appellant wanted to bring on record under Order XLI Rule 27 of the Code of Civil Procedure has direct relation with the unregistered agreement of sale of 1999, which was assailed in the suit itself. He therefore, states that by rejection of the application Under Order XLI Rule 27 of the Code of Civil Procedure, the court below has committed an illegality. He does not dispute that the appeal is still pending. 5. He therefore, states that by rejection of the application Under Order XLI Rule 27 of the Code of Civil Procedure, the court below has committed an illegality. He does not dispute that the appeal is still pending. 5. Having considered the submission of learned counsel for the petitioner and perused the record, from a perusal of the impugned order dated 23.08.2012 it will be seen that the court below has recorded the reason for rejecting the application of the appellant petitioner. Paragraph 7 of the order of the appellate court is quoted hereunder:- "7 & vkf{kIr [krkSuh dh izfof"V 18&3&2006 dh gSA bl izdkj Li"V gS fd iz'uxr [krkSuh vihykFkhZ dks voj U;k;ky; ds le{k nkok yafcr jgus ds nkSjku fMdzh ikfjr djus ds iwoZ miyC/k FkhA ijUrq iwoZ esa mDr [krkSuh izLrqr u djus dk ;g vk/kkj fy;k x;k fd i=koyh esa f[kYFk feYFk gks x;h FkhA ;g vk/kkj nLrkosth; lk{; o mlds j[k j[kko lkekU; xzkeh.k O;fDr;ksa dh {kerk ,oa izd`fr ds ifjizs{; esa Ik;kZIr vk/kkj gS vkSj bl izdkj ;g izys[k fu'p; gh lh0ih0lh0 ds vkns'k 41 fu;e 27 ¼d½ ¼d½ dh vis{kkvksa dks iwjh djrk gSA ijUrq voj U;k;ky; ds vfHkys[k ls fofnr gksrk gS fd oknh dk nkok vjftLVzhd`r eqvkfgnk o; fn0 12&6&99 ij vk/kkfjr gS rFkk ^deyk^ nsoh ds }kjk o"kZ 2006 esa fd;s x;s cSukes ds laca/k esa dksbZ vfHkopu ugha gSA bl izdkj lk{; esa izLrqr dh tk jgh [krkSuh vfHkopuksa ds vHkko esa lk{; esa xzg.k fd;s tkus ;ksX; ugha gSA ,slh fLFkfr esa i{kksa ds chp fookn ds fuLrkj.k ds fy, lqlaxr Hkh ugha dgk tk ldrkA lh0ih0lh0 ds vkns'k 41 fu;e 27 ¼d½ ¼d½ ds v/khu ,sls nLrkost Lohdkj fd;s tkrs gSa tks fd i+{kksa ds fookn ds fuLrkj.k ds fy, lqlaxr o vko';d gS rFkk mDr izkfo/kku dh rhuksa [k.Mksa esa ls fdlh ,d dks iwjk djrh gksA ;|fi izLrqr [krkSuh lh0ih0lh0 ds vkns'k 41 fu;e 27 ¼d½ ¼d½ dh vis{kk dks iwjh dj jgh gS] ysfdu vfHkopu ds vHkko esa lk{; esa xzg.k djus ;ksX; ugha gS vkSj u gh i{kksa ds chp mRiUu ds fuLrkj.k gsrq lqlaxr gh gSA vr% lh0ih0lh0 ds vkns'k 41 fu;e 27 ds vUrxZr izLrqr vfHkys[k lk{; easa xzg.k fd;s tkus ;ksX; ugha gSA rn~uqlkj vkosnu i= fujLr gksus ;ksX; gSA" 6. From a reading of the impugned order, it is clear that the application has been rejected on the ground that the Khatauni which is sought to be brought on record was not filed before the trial court. 7. The second ground for which the application under Order XLI Rule 27 of the Code of Civil Procedure has been rejected is that the Khatauni which is sought to be brought on record relating to the sale deed of 2006 does not find mention in the plaint and there is no recitation about the sale deed of 2006 in the plaint as such the Khatauni based thereupon has no relevance in the present appeal, hence cannot be admitted in evidence. It has also been recorded that only such document can be taken as an additional evidence at the appellate stage which enable the court to effectively decide the real controversy between the parties. However, since there is no pleading relating to the sale deed of 2006 then the Khatauni relating thereto cannot be admitted in evidence. 8. No error can be found in the view taken by the appellate court in the impugned order dated 23.08.2008, whereby the application 19Ga of the appellant petitioner under Order XLI Rule 27 of the Code of Civil Procedure has been rejected. There is no merit in this writ petition. It is accordingly dismissed. 9. No order is passed as to costs. _____________