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2013 DIGILAW 2890 (ALL)

Ram Kewal v. State of U. P.

2013-11-26

S.S.CHAUHAN

body2013
JUDGMENT S.S. Chauhan, J. Heard learned counsel for the petitioners and learned counsel for the opposite parties. 2. This petition has been filed challenging the order dated 23.9.2010 passed in Misc. Civil Appeal No.62 of 2003 and a further prayer has been made for prohibiting Civil Judge, Junior Division, (Haveli), Faizabad not to proceed with the trial of Regular Suit No.33 of 1983. 3. The facts in short are that the land of Ram Pher, father of opposite party no.4, was purchased by petitioner no.1-Ram Kewal (minor) through his father-petitioner no.2 as a natural guardian by impersonation vide sale deed dated 18.11.1982. As and when it came to the knowledge of Ram Pher that a fraudulent sale deed has been executed, he instituted a suit for cancellation of sale deed and for permanent injunction on 31.1.1983 alleging therein that he has never executed the sale deed nor he ever appeared before the Sub Registrar nor received any consideration. The said suit was registered as Suit No.33 of 1983. During pendency of the suit, the petitioners filed a forged compromise dated 1.8.1983. In the said compromise a forged statement of Ram Pher was recorded on 19.8.1983 by impersonating someone else on his behalf and the compromise deed was allegedly verified by the court below and the suit was decreed in terms of compromise vide order dated 19.8.1983. In the year 1991, petitioner no.1 (minor) again filed a Suit No.74 of 1991 for declaring the order dated 19.8.1983 passed in Regular Suit No.33 of 1983 by means of which the suit was decreed in terms of compromise as alleged by stating therein that petitioner no.2 did not take proper care of his interest, who was minor and the same was not in his interest and petitioner no.2 was impleaded as defendant no.2. In Suit No.74 of 1991, no notice was ever issued against the father of opposite party no.4, namely, Ram Pher but again fraudulent and forged vakalatnama was filed on behalf of Ram Pher. No written statement was filed by Ram Pher and petitioner no.2, who was defendant no.1, supported the suit and the suit was decided ex-parte against Ram Pher vide judgment and decree dated 15.4.1994. No written statement was filed by Ram Pher and petitioner no.2, who was defendant no.1, supported the suit and the suit was decided ex-parte against Ram Pher vide judgment and decree dated 15.4.1994. After some time, father of opposite party no.4, namely, Ram Pher came to know about the alleged forgery committed by the petitioners and he moved an application under Section 151 CPC for setting aside the ex-parte decree dated 19.8.1983 passed in Regular Suit No.33 of 1983, which was rejected on 18.9.2003. Ram Pher also filed restoration application under Order 9 Rule 13 CPC for setting aside the ex-parte judgement and decree dated 15.4.1994 passed in Suit No.74 of 1991, which was also rejected vide order dated 18.9.2003. Ram Pher proceeded to lodge an FIR against the petitioners under Sections 419, 420, 467, 468 & 471 IPC at Police Station Haiderganj, District Faizabad at Crime No.236 of 2001. After investigation in the same case, a charge sheet was filed on 23.1.2003 against petitioner no.2 and two witnesses, namely, Ram Surat Pandey and Vinod Kumar. The trial is going on and the same is at a very advanced stage. The Forensic Science Laboratory has also reported that thumb impression on the sale deed was not of the alleged executant of the sale deed viz. Ram Pher. Ram Pher filed a Civil Revision No.369 of 2003 against the order dated 18.9.2003 by means of which his application under Section 151 CPC for setting aside ex-pare judgment dated 19.8.1983 was rejected. Ram Pher also filed Civil Appeal No.62 of 2003 against the order dated 18.9.2003 by means of which his application under Order 9 Rule 13 CPC for setting aside ex-parte judgment and decree dated 15.4.1994 passed in Suit No.74 of 1991 was rejected and the said appeal of Ram Pher was partly allowed vide order dated 23.9.2010. Civil Revision and the Civil Appeal were decided together by the same court and both found mention on each other and in the judgment of Civil Appeal a finding has been recorded that the summons were never issued to Ram Pher and partly allowed the appeal to the extent that the judgment and decree dated 19.8.1983 passed in Original Suit No.33 of 1983 was set aside and the trial court was directed to decide the same from that stage after giving opportunity to the parties concerned to adduce evidence. 4. 4. Submission of learned counsel for the petitioners is that by means of the orders dated 23.9.2010, both the appeal and the revision have been decided but the same could not have been done by the appellate court. It has also been submitted that the order of the trial court has wrongly been set aside as the parties were duly represented before the trial court and Ram Pher has verified the compromise and appended his signature and so it cannot be said that any illegality was committed by the trial court. 5. Learned counsel for the opposite parties has submitted that all along forgery was committed by petitioners no.1 and 2 in collusion with two attesting witnesses and a fraudulent sale deed was registered in respect of the property of Ram Pher, who happens to be father of opposite party no.4 and as and when it came to the knowledge of Ram Pher, he filed a suit for cancellation of sale deed and for permanent injunction on 31.1.1983, which was registered as Suit No.33 of 1983. During pendency of the said suit a forged compromise was filed and the suit was got decided in terms of compromise. As soon as it came to the knowledge of the father of opposite party no.4, he moved an application under Section 151 CPC for setting aside the ex-parte decree dated 19.8.1983 but the same was rejected on 18.9.2003 and in the meantime, another suit was filed by the petitioner no.1 in which father of opposite party no.4 was arrayed as defendant no.2 and a forged vakalatnama was filed on his behalf and the suit was decreed against the father of opposite party no.4 ex-parte. No notice was served upon Ram Pher, who was defendant no.2 in the said suit and the suit was decided ex-parte as against Ram Pher. Vakalatnama on behalf of Ram Pher was filed on 29.5.1992 by putting forged thumb impression but apart from the said vakalatnama, no written statement was filed and the suit was decided ex-parte. The revision filed by the father of opposite party no.4 was rejected by observing the the judgment and decree dated 19.8.1983 has been set aside in Misc. Vakalatnama on behalf of Ram Pher was filed on 29.5.1992 by putting forged thumb impression but apart from the said vakalatnama, no written statement was filed and the suit was decided ex-parte. The revision filed by the father of opposite party no.4 was rejected by observing the the judgment and decree dated 19.8.1983 has been set aside in Misc. Appeal No.62 of 2003 and a judgment has been rendered that Original Suit No.33 of 1983 is restored to its original number and the same shall be decided after giving opportunity to the parties to adduce the evidence. While deciding the appeal filed by Ram Pher, care has been taken to restore Suit No.33 of 1983, which was decided on the basis of forged compromise. 6. I have heard learned counsel for the parties and perused the record. 7. Suit No.33 of 1983 was filed for cancellation of sale deed 31.1.1983, which was decided on the basis of forged compromise dated 1.8.1983. The sale deed dated 18.11.1982, which was challenged, was also executed by some imposter in place of Ram Pher. Since an understanding was given to Ram Pher not to pursue the sale deed as the sale deed would not be pressed upon, so he left pairvi of the suit. As and when it came to knowledge that the said suit was decreed, Ram Pher moved a misc. application under Section 151 CPC for setting aside the ex-parte decree dated 19.8.1983. The said application was rejected. Ram Pher also filed an application under Order 9 Rule 13 CPC for setting aside ex-parte judgment and decree dated 15.4.1994 passed in Suit No.74 of 1991, which was also rejected vide order dated 18.9.2003. The said suit was filed by petitioner no.1 in the year 1991 bearing Suit No.74 of 1991 for declaring the earlier decree dated 19.8.1983 passed in Suit No.33 of 1983 as illegal and in the said suit petitioner no.2 was arrayed as defendant no.1 and notice was served in the said suit on defendant no.1. The said suit was filed by petitioner no.1 in the year 1991 bearing Suit No.74 of 1991 for declaring the earlier decree dated 19.8.1983 passed in Suit No.33 of 1983 as illegal and in the said suit petitioner no.2 was arrayed as defendant no.1 and notice was served in the said suit on defendant no.1. Defendant no.2 was Ram Pher but no notice was served upon him and a forged vakalatnama was filed on his behalf and thereafter nothing was done and neither any evidence was led and the suit was decided on merit against petitioner no.2, who happened to be defendant no.1 and supported the contention made in the suit and ex-parte against Ram Pher (father of opposite party no.4), who was defendant no.2. Ram Pher also instituted a criminal case at Crime No.236 of 2001 under Sections 419, 420, 467, 468 & 471 IPC at Police Station Haiderganj, District Faizabad in which charge sheet was filed and the trial is proceeding and the same is at a very advanced stage. Ram Pher filed revision against the order dated 18.9.2003. He also filed Misc. Appeal No.62 of 2003 against the order dated 18.9.2003. The revision preferred against the order dated 18.9.2003 was dismissed by observing that in Misc. Appeal No.62 of 2003, Suit No.33 of 1983 was restored to its original number and with the said observation the revision was held to be not maintainable. While deciding the misc. appeal, it was found that fraud was committed by the petitioners and the Forensic Science Laboratory has also sent a report to the effect that the signatures on the sale deed are not of the original executant. The revision of the father of opposite party no.4 was dismissed and the civil appeal against the order dated 18.9.2003 was partly allowed. 8. It is to be noted that after Suit No.33 of 1983 was decided on the basis of forged compromise, Suit No.74 of 1991 was filed in which Ram Pher was arrayed as defendant no.2. A forged vakalatnama was filed on behalf of Ram Pher and thereafter nothing was done and neither any notice was issued to Ram Pher nor any written statement was filed by him. A forged vakalatnama was filed on behalf of Ram Pher and thereafter nothing was done and neither any notice was issued to Ram Pher nor any written statement was filed by him. The appeal preferred by Ram Pher was partly allowed and the ex-parte order passed in Suit No.33 of 1983 was set aside having found that the fraud was practised upon the court and Ram Pher was never party to the said compromise and after setting aside the said compromise, it was further observed that the judgment and decree dated 15.4.1994 is also modified to the aforesaid extent. In the opinion of the Court, no illegality has been committed by the appellate court as the petitioners have challenged only the appellate order dated 23.9.2010 and the revision was dismissed being not maintainable. Both the orders have been passed on the same day but separately. Appellate court has applied his mind and decided the revision as well as the appeal. The revision has been dismissed finding that it was not maintainable on account of the fact that the appeal stood allowed, therefore, the appellate court has committed no illegality and neither the order passed by the appellate court can be said to suffer from any illegality or infirmity. 9. The writ petition is devoid of merit. It is accordingly dismissed.