Anar Singh v. Additional District and Sessions Judge, Court No. 9, Lucknow
2014-07-14
RAM SURAT RAM (MAURYA)
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JUDGMENT Ram Surat Ram (Maurya), J. – Heard Sri Anurag Srivastav, for the petitioner and Sri Manish Kumar, for the respondents. 2. The writ petition has been filed against the orders of Additional Civil Judge (respondent-2) dated 04.08.2010, allowing amendment application and substitution applications and Additional District Judge (respondent-1) dated 22.04.2014, dismissing revision of petitioner, against aforesaid order. 3. Smt. Maiki, alleging herself to be widow of Jagannath, filed R.S. No. 8 of 1973 against Gaya Prasad (now represented by the petitioner) and others for cancellation of sale deed dated 27/28.05.1968, allegedly executed by Jagannath in favour of Shiv Prasad and Gaya Prasad of his agricultural land situated in village Rahimabad, pargana Bijnore, district Lucknow. The suit was contested on the ground that Maiki was never married to Jagannath and had no locus standi to file the suit. Jagannath was bhumidhar of the land in dispute and voluntarily executed sale deed dated 27/28.04.2014 after taking sale consideration of Rs. 8000/-. The suit was decreed by the Trial Court by judgment dated 19.04.1980. The petitioner filed Civil Appeal No. 168 of 1980 from the aforesaid decree. 4. In the meantime Smt. Maiki died on 24.11.1981. One Mangal Prasad, claiming to brother of Smt. Maiki, filed an application dated 18.02.1982 (Ka-59) for his substitution as an heir and legal representative of Smt. Maiki on the basis of a registered will dated 24.10.1972, allegedly executed by Smt. Maiki in his favour and other consequential amendment. The substitution application was contested by filing objection (C-64). Before disposal of the substitution application, Mangal Prasad also died on 29.04.1986. An application dated 27.07.1986 (Ka-96) was filed in the name of Tara Chand son of Mangal Prasad but was signed by Ram Chandra (now represented by respondents-4 to 8). In paragraph-1 of this application, it has been mentioned that Mangal Prasad died on 29.04.1986, leaving behind him the petitioner Ram Chand, Kishan Chand and Harihar Chand sons of Mangal Prasad and Smt. Rukmani widow of Mangal Prasad as his heirs. This application (Ka-96) was allowed by order dated 07.01.1987. An application filed for recalling order dated 07.01.1987 was rejected on 27.04.1987. 5. The petitioner filed Civil Revision No. 100 of 1987 from the aforesaid orders, which was allowed by order dated 11.10.1988 and the orders dated 07.01.1987 and 27.04.1987 were set aside. The matter was remanded for deciding applications (Ka-59) and (Ka-96) afresh after hearing the parties.
An application filed for recalling order dated 07.01.1987 was rejected on 27.04.1987. 5. The petitioner filed Civil Revision No. 100 of 1987 from the aforesaid orders, which was allowed by order dated 11.10.1988 and the orders dated 07.01.1987 and 27.04.1987 were set aside. The matter was remanded for deciding applications (Ka-59) and (Ka-96) afresh after hearing the parties. The order was challenged in Writ Petition No. 266 (MS) of 1989, which was dismissed by order dated 18.08.2004. 6. In the meantime Ram Chand died on 15.11.1998. Respondents-4 to 8 filed an application dated 12.02.1999 (Ka-114) for their substitution as heirs of Ram Chand and consequential amendment. At this stage, it was noted that in the application (Ka-96), word "Tara" has been typed in stead of "Ram". Then another application dated 19.11.2007 (Ka-127) was filed to amend application (Ka-96) deleting word "Tara" and substituting word "Ram" in its place. The petitioner filed his objection (C-129) to the aforesaid application. Trial Court, by order dated 05.02.2008, held that as Revisional Court, in its order dated 11.10.1988 observed that application (Ka-96) was defective application and liable to be rejected and order of Revisional Court was confirmed in the writ petition as such amendment application was not maintainable. On these findings the application (Ka-127) was rejected. The contesting respondents filed Civil Revision No. 81 of 2008 from the aforesaid order, which was dismissed by order dated 09.07.2008, giving liberty to them to file a fresh substitution application. 7. The contesting respondents then filed an application dated 27.09.2008 (Ka-133) for their substitution as heirs of Ram Chandra and the consequential amendments. The petitioner filed his objection (C-136). Trail Court heard the arguments on applications (Ka-59), Ka-96), (Ka-114) and (Ka-133) and by order dated 04.08.2010 allowed the application (Ka-133) and disposed off other applications. The petitioner file a revision (registered as Civil Revision No. 8 of 2011) from the aforesaid order, which has been dismissed by respondent-1 by order dated 22.04.2014. Hence this writ petition has been filed. 8. The counsel for the petitioner submitted that application (Ka-96) was defective in as much as the particular of Tara Chand was mentioned in the application and the affidavit filed along with it but it was signed by Ram Chand.
Hence this writ petition has been filed. 8. The counsel for the petitioner submitted that application (Ka-96) was defective in as much as the particular of Tara Chand was mentioned in the application and the affidavit filed along with it but it was signed by Ram Chand. Application dated 19.11.2007 (Ka-127), by which the contesting respondents tried to rectify the mistake, has already been rejected by order dated 05.02.2008 and that order was affirmed by Revisional Court by order dated 11.10.1988, and by this Court. Subsequent application (Ka-133) was, in effect, to rectify the same mistake, in application (Ka-96) and could not be allowed. Application (Ka-96) being a defective application, was liable to be rejected. Findings recorded in the orders dated 11.10.1988 and 18.08.2004, in which hearing of application (Ka-59) and (Ka-96) alone were permitted were binding. No fresh application could have been entertained or allowed. The Courts below have been illegally ignored the aforesaid orders and entertained fresh application and allowed it. Remand order dated 04.08.2010 has been misread and misinterpreted. The orders of the Courts below are illegal and liable to be set aside. 9. I have considered the arguments of the counsel for the petitioner and examined the record. On the death of Smt. Maiki, sole plaintiff, on 24.11.1981, Mangal Prasad, filed substitution application dated 18.02.1982 (Ka-59) for substituting him as an heir and legal representative of Smt. Maiki on the basis of a registered will dated 24.10.1972, allegedly executed by Smt. Maiki in his favour and other consequential amendment. Before disposal of this substitution application, Mangal Prasad died on 29.04.1986 and substitution application dated 27.07.1986 (Ka-96) was filed. In paragraph-1 of this application, it has been mentioned that Mangal Prasad died on 29.04.1986, leaving behind him the petitioner Ram Chand, Kishan Chand and Harihar Chand sons of Mangal Prasad and Smt. Rukmani widow of Mangal Prasad as his heirs. However due to typographical error, in the description, name of Tara Chand son of Mangal Prasad was mentioned in the application and the affidavit filed in support of it but it was signed by Ram Chandra. After death of Ram Chand on 15.11.1998, respondents-4 to 8 filed an application dated 12.02.1999 (Ka-114) for their substitution as heirs of Ram Chand and consequential amendment. Substitution applications (Ka-59), (Ka-96) and (ka-114) were within time.
After death of Ram Chand on 15.11.1998, respondents-4 to 8 filed an application dated 12.02.1999 (Ka-114) for their substitution as heirs of Ram Chand and consequential amendment. Substitution applications (Ka-59), (Ka-96) and (ka-114) were within time. By virtue of Section 141 C.P.C. provision contained in Code of Civil Procedure, 1908 relating to amendment of the pleadings under Order VI Rule 17 C.P.C. was applicable. The contesting respondents filed application dated 19.11.2007 (Ka-127) to amend application (Ka-96) deleting word "Tara" from the application and substituting word "Ram" in its place. It is most unfortunate that Court below ignoring the provision of Section 141 C.P.C., by order dated 05.02.2008 held that as Revisional Court by order dated 11.10.1988 observed that application (Ka-96) was defective and liable to be rejected and order of Revisional Court was confirmed by High Court in the writ petition as such amendment application was not maintainable and rejected the application (Ka-127). The contesting respondents filed Civil Revision No. 81 of 2008 from the aforesaid order, which was dismissed by order dated 09.07.2008, giving liberty to the contesting respondents to file a fresh substitution application. In pursuance of the liberty given by Revisional Court, the application dated 27.09.2008 (Ka-133) was filed for their substitution as the heirs of Ram Chandra and the consequential amendments, which was allowed by Trail Court by the impugned order dated 04.08.2010 and all applications (Ka-59), Ka-96), (Ka-114) and (Ka-133) were disposed off. Thus application (Ka-133) was according to the liberty given by the Revisional Court. It has to be observed that the petitioner successfully delayed the disposal of substitution application (Ka-59) dated 18.02.1982, and other substitution applications which were within time, for a period of 32 years, on frivolous objections. 10. The impugned orders do not suffer from any illegality. The writ petition has no merit and is dismissed.