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Allahabad High Court · body

2013 DIGILAW 6 (ALL)

Nirahu and Another v. Kailashpati and Others

2013-01-02

KRISHNA MURARI

body2013
Krishna Murari, J.;— Heard learned counsel for the petitioners and learned Standing Counsel for respondents no. 13 to 15. Looking into the peculiar facts and circumstances of the case and the order proposed to be passed hereunder, these two writ petitions arising out of the same proceedings and between the same parties are being disposed of without putting the private respondents to notice. However, their rights for clarification/modification/alteration of the order, in case they feel aggrieved, are being kept reserved. Petitioners and respondents no. 1 & 2 jointly filed a suit under Section 176 of U.P. Zamindari Abolition & Land Reforms Act. A preliminary decree was passed on 14.3.2005. No objection was filed and ultimately 'Qurras' were prepared and a final decree was passed on 15.3.2007. The decree was duly executed and accordingly entries were also made in the revenue record. After about a period of five years, respondents no. 1 & 2 herein who were co-plaintiffs along with petitioners filed an appeal challenging the preliminary decree on various grounds. The petitioners contested the appeals on the ground that they are barred by limitation and not maintainable at the behest of co-plaintiffs. The contention of the learned counsel for the petitioners is that without deciding the question of limitation and the maintainability of the appeal the Additional Commissioner wrongly passed an interim order restraining the petitioners from raising any construction over the land which came into their share. Reliance in support of the contention has been placed on a judgment of the Hon'ble Apex Court in the case of Gagandeep Pratishthan Pvt. Limited & others v. M/s. Mechano & another, reported in AIR 2002 SC 204 . I have considered the argument and perused the record. The Apex Court in the case of Gagandeep Pratishthan (Supra), relied upon by learned counsel for the petitioners in an identical situation where an interim order was passed by the Court without considering the preliminary question has observed as under : "5.We notice that the impugned order was passed on 29.9.2000 and at the time of passing of the order the High Court had taken note of the fact that it still had not decided the application for condonation of delay, yet it passed the order because of the urgency involved in the matter and because of the fact that it was not in a position to decide the appeal finally. As a matter of fact we notice from the order, that the High Court had decided to dispose of the appeal finally which it could not do so because of the impending vacation of the court at that time. Hence, it thought it fit to make the impugned interim order without considering the preliminary questions. 6. In view of the peculiar facts of this case without going into the merits of the contentions raised by the counsel for the appellants, we think it is just and fair that we should not at this point of time interfere with the impugned order though the High Court could have avoided passing such orders in proceedings where the maintainability itself was being seriously questioned. Be that as it may, we at this stage think it appropriate that the High Court should consider the question of condonation of delay and the objection of the appellants herein in regard to maintainability of the appeal first, before proceeding with the appeal any further. We also think it to be just and proper that any further interim orders if necessary in the appeal before the High Court in regard to the suit property should be made only after deciding the question of delay and maintainability of the appeal and the order already made should be confined to the appointment of a Receiver and filing of his report only, meaning thereby that the impugned order be confined to the appointment of receiver for the purpose of filing his report as directed by the Court and nothing beyond that, at this stage." In the present case also while issuing notices the appellate court passed the interim order considering the facts and circumstances and the urgency in the matter inasmuch as in the absence of any interim order, if the petitioners would have raised any construction the very purpose of filing appeal would have been frustrated. In such view of the matter, the impugned order passed by the appellate court restraining the petitioners from raising any construction is not liable to be inteferred at this stage. However, the proceedings before the Additional Commissioner cannot be permitted to continue and linger on. In such view of the matter, the impugned order passed by the appellate court restraining the petitioners from raising any construction is not liable to be inteferred at this stage. However, the proceedings before the Additional Commissioner cannot be permitted to continue and linger on. In such circumstances, two writ petitions stand disposed of with the direction to the Additional Commissioner (Administration), Varanasi Division, Varanasi to decide the issue of limitation and maintainability of two appeals expeditiously preferably within a period of two months from the date of production of a certified copy of this order before him after notice and opportunity of hearing to all concerned. _____________