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2016 DIGILAW 4021 (ALL)

Shashi Prabha v. State of U. P.

2016-12-14

MANOJ KUMAR GUPTA

body2016
JUDGMENT Manoj Kumar Gupta, J. – Heard learned counsel for the petitioner and learned counsel appearing on behalf of respondent no. 5. The pleadings have been exchanged between the parties and with consent of learned counsel for the parties, the matter is heard finally. 2. The petitioner has instituted a suit under Section 229B of U.P.Z.A. and L.R. Act, 1950 seeking declaration as regards bhumidhari rights over the suit land. The case of the petitioner was that Archs Weld Stephen Richard, father of respondent no. 5 recorded tenure holder had taken loan of Rs. 3,000/- from her and has executed a deed in her favour on 13.11.1973 in order to secure the loan. He had also delivered possession to the petitioner. Accordingly, the petitioner claimed the decree for declaration of bhumidhari rights in the suit land. The trial court decreed the suit on 2.2.1984 placing reliance on an Iqbaldawa dated 15.2.1983 allegedly containing signatures of respondent no. 5. Respondent no. 5 subsequently filed an application dated 6.3.1984 under Order 9, Rule 13 readwith Section 151 C.P.C. for setting aside the judgment dated 2.2.1984. The specific case of the fifth respondent was that he had never been served with the summons in the suit nor he entered into any compromise. He also denied having filed any Iqbaldawa dated 15.2.1983. The restoration application was dismissed under Order 9, Rule 2 C.P.C. by order dated 18.02.1986 as respondent no. 5 failed to take steps to serve the opposite parties. On 27.7.1991 an application was filed for recall of the order dated 18.2.1986. The trial court rejected the restoration application holding that there is no proper explanation for the delay in filing the application. Aggrieved by the said order, respondent no. 5 filed an appeal before the Commissioner. The appeal was allowed by order dated 30 January, 2012 and the suit was restored to its original number. Aggrieved by the said order, the petitioner filed a revision before the trial court, which has been dismissed by impugned order dated 18.4.2012. Hence, the instant writ petition. 3. Learned counsel for the petitioner submitted that in the impugned order, the courts below have not recorded proper findings regarding sufficiency of cause in not filing the restoration application in time. It is further submitted that the suit was decreed on the basis of the Iqbaldawa and consequently, upon rejection of the restoration application, no appeal was maintainable. 3. Learned counsel for the petitioner submitted that in the impugned order, the courts below have not recorded proper findings regarding sufficiency of cause in not filing the restoration application in time. It is further submitted that the suit was decreed on the basis of the Iqbaldawa and consequently, upon rejection of the restoration application, no appeal was maintainable. 4. On the other hand, learned counsel for the fifth respondent supported the findings recorded by the revisional authority as well as in the order allowing the appeal. 5. The appellate authority while allowing the appeal by order dated 30.1.2012 has considered the nature of the case set up by the petitioner in the suit instituted by her. It has been noted that the case set up in the plaint was that father of respondent no. 5 had taken a loan of Rs. 3,000/- from her and in lieu whereof he had delivered possession of suit land to the petitioner. Concededly, the father of respondent no. 5 had died long back and after his death, his name was duly entered in the revenue records as a bhumidhar. In such view of the matter, the appellate authority was of the view that once the fifth respondent had come up before the Court contending that he had never been served with summons in suit nor had entered into any compromise, he should have been given opportunity to contest the proceedings on merit. The appellate authority has also considered the question of delay in the context of the case set up by Respondent no. 5 to the effect that he is not residing at Gorakhpur but at Allahabad and he was given assurance by his counsel that he would take care in prosecuting the restoration application but on account of his fault, the restoration application came to be rejected. The appellate authority has considered the entire facts and circumstances of the case and has thereafter concluded that the fifth respondent should be given an opportunity to contest the suit on merits. Accordingly, the ex parte decree in the suit as well as the orders passed by the trial court rejecting the restoration application, have been set aside. The revisional authority has concurred with the findings recorded by the appellate authority. Learned counsel for the petitioner could point out any perversity in the findings recorded by the appellate authority as well as the revisional authority. The revisional authority has concurred with the findings recorded by the appellate authority. Learned counsel for the petitioner could point out any perversity in the findings recorded by the appellate authority as well as the revisional authority. The effect of the impugned order is that the suit will now be decided on merits. In the facts and circumstance aforesaid, this Court does not find any reason to interfere with the impugned orders. 6. The petition lacks merit and is dismissed. The trial court shall endeavour to decide the suit expeditiously without providing unnecessary adjournment to the parties, preferably within a period of one year from the date of production of certified copy of this order. Petition Dismissed.