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2015 DIGILAW 366 (ALL)

Madhu v. District Judge Sitapur

2015-02-24

DEVENDRA KUMAR UPADHYAYA

body2015
JUDGMENT Devendra Kumar Upadhyaya,J. Heard learned counsel for the petitioner. 2. These proceedings under Article 226 of the Constitution of India have been instituted assailing the order dated 07.02.2015 passed by the learned District Judge, Sitapur, whereby the appeal filed by one Shri Satish Kumar and Ram Pyari challenging the order dated 28.07.2012, passed by the learned trial court has been ordered to be converted into a revision petition. 3. Shorn of unnecessary details, facts of the case are that a suit was filed by one Shri Satish Kumar for cancellation of sale-deed allegedly executed by Smt. Shanti Devi in favour of Smt.Madhu on 16.06.2008. Smt. Madhu is defendant no.2 in the suit. Smt.Madhu-petitioner moved an application before the learned trial court for getting D.N.A. Test conducted to ascertain as to whether Shri Satish Kumar is the son of Smt. Shanti Devi. The said application was allowed. The revision petition preferred against the said order allowing the application for D.N.A. Test was dismissed. Thereafter a writ petition was preferred before this Court which was dismissed as having become infructuous by this Court by means of an order dated 12.09.2012 passed in Writ Petition No.5585 (M/S) of 2011. Thereafter, since plaintiff-Shri Satish Kumar did not make himself available for DNA Test in terms of the earlier order, an application was moved by the petitioner, who is defendant in the suit under Section 151 of the CPC for dismissal of the suit on the ground that the same has been filed only with a view to harass her. Allowing the said application, the suit was dismissed by the learned trial court by means of the order dated 28.07.2012. 4. During the pendency of the said suit, the plaintiff-Satish Kumar executed a sale deed in respect of the property in suit on 07.01.2009 in favour of one Ram Pyari. Satish Kumar and Ram Pyari both challenged the order dated 28.07.2012 by way of instituting Civil Appeal No.97 of 2012. The learned Additional District & Sessions Judge, Court No.7, Sitapur, was of the view that against the order of the learned trial court dated 28.07.2012 appeal was not maintainable, hence, by means of the order dated 20.05.2013 he directed that the matter may be laid before Hon'ble the District Judge for conversion of the appeal into a revision and both the parties were directed to appear in the court of learned District Judge, Sitapur. Challenging the aforesaid order dated 20.05.2013, a Writ Petition bearing No.4715 (M/S) of 2013 was filed by Smt. Shanti Devi & Smt. Madhu, who is the present petitioner in this petition. The said writ petition was finally disposed of by means of an order dated 24.07.2013 with the direction to the petitioners to the said writ petition to approach the revisional court and raise objection in regard to their grievance, which would be considered and disposed of appropriately in accordance with law by the District Judge, Sitapur. 5. After passing of the aforesaid order dated 24.07.2013 by this Court, the application moved by Shri Satish Kumar seeking substitution under Order XXII Rule 4 read with Order VI Rule 17 CPC was to be considered by the learned court below. The said application has been numbered as Application No.44 Ka 1. It appears that the District Judge heard the arguments of the parties on the application No.44 Ga 1 on 31.01.2015 and fixed 07.02.2015 for orders on the said application. The District Judge, however, while passing the order on 07.02.2015, which has been challenged by the petitioner in this writ petition, directed that the Appeal No.97 of 2012 is converted into revision petition. Accordingly, he further directed that let the revision be registered and file be transmitted to the revisional court, namely, to the court of learned Additional District Judge, Court No.7, Sitapur for disposal in accordance with law. The parties were directed to appear before the learned Additional District Judge, Court No.7, Sitapur on 21.02.2015. 6. It is this order dated 07.02.2015, passed by the learned District Judge, Sitapur, which is under challenge in this petition. 7. Learned counsel for the petitioner has submitted that the District Judge while passing the impugned order dated 07.02.2015 has not taken into consideration the objections made by the petitioners to the effect that the appeal preferred by Ram Pyari, who was arrayed as appellant no.2 was not maintainable and further that without deciding the substitution application, the District Judge could not have passed any order on 07.02.2015. Lastly, learned counsel for the petitioner has submitted that since this Court by means of the order dated 24.07.2013 passed in Writ Petition No.4715 (M/S) of 2013 had directed the District Judge to consider the objections raised by the petitioner, the District Judge while passing the order dated 07.02.2015 has erred in law in not taking into consideration the objections made by the petitioners which amounts to circumventing the order passed by the Writ Court on 24.07.2013. 8. In support of his submission, learned counsel for the petitioner has submitted that the appeal at the behest of Ram Pyari, who was arrayed as appellant no.2 could not be maintained. In this regard, learned counsel for the petitioner has relied upon various judgments of this Court as well as Hon'ble Supreme Court in the cases of Shahzad Ahmad Khan & others vs. Mohammad Ahmad and others, reported in [2008 (104)RD 443 (Allahabad High Court], Gir Raj Singh vs. Brijesh Goswami and others, reported in [ 2006 (101)RD 142 (Allahabad High Court], Sunil Gupta vs. Kiran Girhotra and others, reported in [2008 (104) RD 493 (Supreme Court)], Bharat Karson Das Thakkar vs. M/s. Kiran Construction Co. and others, reported in [2009 (106) RD 81 (Supreme Court)], Ramesh Chandra Pattnaik vs. Purshpendra Kumari and others, reported in [2009 (106) RD 668 (Supreme Court)], M/s. Nandpuri Sahkari Grih Nirman Samiti Ltd., Lucknow vs. State of U.P. and others, reported in [ 2009 (106) RD 206 (Allahabad High Court, Lucknow Bench)], Surendra Kumar Verma and another vs. Ram Bhajan and others, reported in [2012 (115) RD 131 (Allahabad High Court], Jagan Singh (dead) through LRs. vs. Dhanwanti and others, reported in [2012 (115) RD 391 (Supreme Court)], Dinesh Kumar vs. Asstt. Director of Consolidation, Agra Camp, Shikohabd and others, reported in [2006 (101) RD 428 (Allahabad High Court)], Yashpal Singh vs. State of U.P. and others, reported in [ 2011 (112) RD 35 (Allahabad High Court)], Shiv Kumar Sharma vs. Santosh Kumari, reported in [2008 (104) RD 489 (Supreme Court)], Vinod Seth vs. Devinder Bajaj and another, reported in [2011 (111) RD 447 (Supreme Court)], Ganga Prasad (Dead) through L.Rs vs. IInd A.D.J., Sultanpur and others, reported in [ 2012 (116) RD 55 (Allahabad High Court, Lucknow Bench)] and Gyanendra Pal Singh and others vs. Cane Commissioner and others, reported in [ 2009 (27) LCD 938 (Allahabad High Court, Lucknow Bench)]. 9. 9. So far as the first ground raised by the learned counsel for the petitioner that the appeal at the behest of Smt. Ram Pyari, wherein she was arrayed as appellant no.2, was not maintainable and the judgments cited in support of this contention is concerned, I may only observe that as far as the law, propounded by the learned counsel for the petitioner with the help of the aforesaid judgments, that the subsequent purchaser is not a necessary party to a suit is concerned, this Court does not have any doubt in the said proposition of law. However, what needs to be considered and seen, at this juncture, is as to whether the objections raised by the petitioners to the effect that the appeal at the behest of Ram Pyari in her capacity as appellant no.2 was maintainable was to be considered by the learned District Judge or not, I may only observe that the said objection is still open to the petitioner to be raised during the proceedings of the revision petition. The District Judge by means of the impugned order dated 07.02.2015 has only ordered conversion of appeal No.97 of 2012 into a revision petition and has further ordered that a fresh revision petition be registered. The question as to whether the revision petition now would be maintainable at the behest of Ram Pyari is still available to the petitioner to be raised during the proceedings of the said revision. Thus, this contention of learned counsel for the petitioner does not hold good. 10. The other submission made by learned counsel for the petitioner is that without passing any order on the application moved by the plaintiff under Order XXII Rule 4 read with Order VI Rule 17 of the CPC moved on account of death of Smt. Shanti Devi, the District Judge could not have proceeded to pass the order on 07.02.2015. The said submission to assail the validity of the order dated 07.02.2015 is also erroneous inasmuch as the District Judge has not drawn any proceedings either in appeal or even in revision. What has the District Judge done by passing the order dated 07.02.2015 is that he has ordered that the appeal to be converted into a revision. The said submission to assail the validity of the order dated 07.02.2015 is also erroneous inasmuch as the District Judge has not drawn any proceedings either in appeal or even in revision. What has the District Judge done by passing the order dated 07.02.2015 is that he has ordered that the appeal to be converted into a revision. The matter has been sent to the revisional court i.e. the court of Additional District Judge, Court No.7, Sitapur, who will now consider and pass appropriate orders on the aforesaid application moved by the plaintiff under Order XXII Rule 4 read with Order VI Rule 17 of the CPC. 11. Coming to the last argument raised by the learned counsel for the petitioner that the District Judge ought to have considered all the objections raised by the petitioner and he could not have sent the matter to the Additional District Judge, Court No.7, Sitapur, I may only observed that this Court while passing the order dated 24.07.2013 has observed that the objections regarding impleadment of Ram Pyari has not been categorically raised and not decided by the District Judge/Additional District Judge. 12. As observed above, the District Judge by passing the impugned order dated 07.02.2015 has not decided any objection regarding impleadment of Ram Pyari as appellant/revisionist, neither has he considered or decided the substitution application moved by the petitioner under Order XXII Rule 4 read with Order VI Rule 17 of the CPC. He has only converted the memo of appeal into memo of revision and has ordered for registration of the case as a revision petition. The objection regarding impleadment of Ram Pyari as revisionist and any other objection as to whether the revision petition would now proceed without deciding the application moved by Shri Satish Kumar under Order XXII Rule 4 read with Order VI Rule 17 of the CPC, will be open to the petitioner to be raised when the proceedings of the revision petition is undertaken by the learned Additional District Judge, Court No.7, Sitapur. 13. Thus, in view of discussions made above, I do not find any illegality in the order dated 07.02.2015, passed by the learned District Judge. The writ petition, being devoid of merit, is hereby dismissed. 14. 13. Thus, in view of discussions made above, I do not find any illegality in the order dated 07.02.2015, passed by the learned District Judge. The writ petition, being devoid of merit, is hereby dismissed. 14. Before parting with the case, the Court observes that the objections regarding the substitution application moved by the plaintiff under Order XXII Rule 4 read with Order VI rule 17 of the CPC and the objection regarding imleadment of Ram Pyari as revisionist in the revision petition if raised before the revisional court i.e. the Court of Additional District Judge, Court No.7, Sitapur, the same shall be considered and decided strictly in accordance with law. 15. There will be no order as to costs.