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2014 DIGILAW 979 (ALL)

Ram Prasad v. D. M.

2014-03-27

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT : Ram Surat Ram (Maurya), J. Heard Sri Amit Saxena and Sri R.S. Kushwaha, for the petitioner and Sri P.R. Maurya and Sri A.N. Srivastava, for the contesting respondents. 2. The writ petition has been filed against the orders of Consolidation Officer dated 19.01.2013, Settlement Officer, Consolidation dated 29.04.2013 and Deputy Director of Consolidation dated 31.01.2014, rejecting the application for amendment of the objection filed by the petitioner, arising out of proceedings under Section 9-A of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The petitioner filed an objection (registered as Case No. 203) under Section 9-A of the Act, for recording his name over ½ share of the land recorded in khata 100 of village Subhashkarpur, pargana and district Ghazipur. The petitioner took the case that the land in dispute originally belonged to Maghau, who was inherited by his two sons Baldev and Ram Davar. Ram Davar had only one son Sita Ram, who had two daughters. The petitioner is the son of Ishlokia, daughter of Sita Ram and inherited the property of Sita Ram, maternal grandfather after his death. Thereafter he exchanged his properties of villages Chandrasenpal and M. Saraipara with other co-sharers from the land of khata in dispute as such his share has become 1/2. During the pendency of the case, the petitioner filed an application for amendment of the objection on 27.07.2011/10.08.2011. By the amendment, he took plea that Baldev brother of Ram Davar died issueless and his share was also inherited by Ram Davar and thereafter by the petitioner. In the amendment application the objection was invited and the Consolidation Officer by order dated 14.09.2011 allowed the amendment application as no objection was filed. 4. The respondents filed an application for recall of the order dated 14.09.2011, on the ground that on 14.09.2011, no argument was heard on the amendment application. The petitioner filed an objection in the recall application and stated that in compliance of the order dated 14.09.2011, the amendment has already been incorporated in the objection as such recall application was liable to be rejected. The recall application was allowed by order dated 29.09.2011 and the order dated 14.09.2011 was recalled. The petitioner filed an objection in the recall application and stated that in compliance of the order dated 14.09.2011, the amendment has already been incorporated in the objection as such recall application was liable to be rejected. The recall application was allowed by order dated 29.09.2011 and the order dated 14.09.2011 was recalled. Then the petitioner filed an application dated 13.10.2011 with the allegation that the application which was allowed on 29.09.2011 was not signed by either of the parties or their counsel as such no order could have been passed on this application. On the application of the petitioner, the order dated 29.09.2011 was recalled on the same day i.e. on 13.10.2011. The respondents then filed an application on 13.10.2011 for recall of the order passed on that day. It is alleged that the application was heard and was rejected by order dated 20.10.2011 by Consolidation Officer. 5. Thereafter the respondents again filed another application on 23.11.2011 for recall of the order dated 14.09.2011 by which the amendment application was allowed. The petitioner filed an objection to the aforesaid application that the amendment application has already been allowed after hearing the parties and recall application filed by the respondents has been rejected on 20.10.2011, as such, subsequent application dated 23.11.2011 was not maintainable. The Consolidation Officer after hearing both the parties rejected the application of the respondents by order dated 28.03.2012. The respondents then filed an appeal from the aforesaid order. The Settlement Officer, Consolidation by order dated 16.05.2012 allowed the appeal and remanded the matter to the Consolidation Officer to decide the amendment application dated 27.07.2011 / 10.08.2011 on merit. The order of the appellate court has been challenged by the petitioner in revision which was decided by order dated 30.10.2012 and the revisional court while dismissing the revision directed the Consolidation Officer to decide the application dated 23.11.2011 filed by the respondents. 6. After remand, the matter was heard by the Consolidation Officer where the petitioner argued that Deputy Director of Consolidation merely directed for deciding the application of the respondents dated 23.11.2011. On the other hand the respondents argued that the revision of the petitioner was dismissed and the appellate court's order was confirmed. Therefore, amendment application was required to be heard afresh on merit as directed by the appellate court. On the other hand the respondents argued that the revision of the petitioner was dismissed and the appellate court's order was confirmed. Therefore, amendment application was required to be heard afresh on merit as directed by the appellate court. The Consolidation Officer, however, took the view that as the appeal of the respondents was allowed and the amendment application has been directed afresh and the revisional court while dismissing the revision directed to decide recall application filed by the respondents dated 23.11.2011, as such, amendment application and recall application both were required to be heard afresh on merit. He further found that evidence of the parties in the case has been completed and the proposed amendment, if allowed, would change the nature of the suit as such amendment application was rejected by order dated 19.01.2013. The order dated 19.01.2013 has been challenged by the petitioner in appeal which has been dismissed on the ground that the impugned order was an interlocutory order and appeal was not maintainable. The petitioner filed a revision against the aforesaid order which has also been dismissed on the same ground by order dated 31.01.2014. Hence this writ petition has been filed. 7. The counsel for the petitioner submitted that order dated 20.11.2011 was passed after hearing both the parties on merit, as such, the Consolidation Officer has no jurisdiction to review his own order. The revisional court specifically directed the Consolidation Officer to decide the application of the respondents dated 23.11.2011 on merit but he has illegally decided the amendment application on merit afresh, which has already been allowed. The order of the Consolidation Officer dated 30.01.2013 is illegal and without jurisdiction and is liable to be set aside. 8. In reply to aforesaid arguments, the counsel for the respondents submitted that respondents challenged the order dated 28.03.2012 in appeal. The appellate court found that the amendment application was illegally allowed by a non-speaking order without hearing the respondents, as such, recall application of the respondents was allowed by the appellate court and the Consolidation Officer was directed to decide the amendment application afresh after hearing the parties. The revision filed by the petitioner against the aforesaid order was dismissed. Therefore, the order of the appellate court remained intact. The revision filed by the petitioner against the aforesaid order was dismissed. Therefore, the order of the appellate court remained intact. In pursuance of the order of the appellate court the amendment application has been decided on merit by the Consolidation Officer, who by order dated 19.01.2013 rejected the amendment application. 9. I have considered the arguments of the counsel for the parties and gone through the record. Before the Consolidation Officer it was argued by the petitioner that Deputy Director of Consolidation merely directed for deciding the application of the respondents dated 23.11.2011. On the other hand the respondents argued that the revision of the petitioner was dismissed, as such, the appellate court's order was confirmed. Therefore, amendment application was required to be heard afresh on merit as directed by the appellate court. The Consolidation Officer, however, took the view that as the appeal of the respondents was allowed and the amendment application was directed to be decided afresh and the revisional court while dismissing the revision directed to decide recall application filed by the respondents dated 23.11.2011, as such, amendment application and recall application both were required to be decided afresh on merit. In similar circumstances, Supreme Court in Rhone Poulene (India) Ltd. v. State of U.P., AIR 2000 SC 3182 , Bharat Coking Coal Ltd. v. Indian Newspaper Society, (2011) 14 SCC 140 and Optiemus Infracom Ltd. v. Ishan System (P) Ltd., (2012) 8 SCC 572 : 2012 (120) AIC 219 (SC). held that while dismissing the writ petition, High Court has no jurisdiction to pass any order in favour of the petitioner. In such circumstances, Consolidation Officer rightly held that direction of the appellate court for deciding amendment application afresh after hearing the parties has not been set aside. 10. So far as the order of Consolidation Officer dated 19.01.2013, rejecting the amendment application, is concerned, the proposed amendment amounts to withdrawal of admission of ½ share of the respondents. It is admitted by both the parties that evidence of the both parties were concluded and the case was listed for final arguments and at that stage amendment application was moved. After allowing the amendment application the parties will require to give fresh evidence to prove the amended pleadings. It is admitted by both the parties that evidence of the both parties were concluded and the case was listed for final arguments and at that stage amendment application was moved. After allowing the amendment application the parties will require to give fresh evidence to prove the amended pleadings. Supreme Court in Modi Spinning and Weaving Mills Ltd. v. Ladha Ram & Co., AIR 1977 SC 680 , Steel Authority of India Ltd. v. Union of India, AIR 2006 SC 3229 , Bollepanda P Poonacha v. K.M. Madappa, AIR 2008 SC 2003 : 2008 (71) ALR 899 (SC) and Gautam Sarup Vs. Leela Ben, 2008) 7 SCC 85 held that an amendment for withdrawing admission in pleading cannot be allowed. 11. In view of the aforesaid discussions, the writ petition has no merit and is dismissed. Petition Dismissed.