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2017 DIGILAW 1239 (ALL)

JAIPAL SINGH v. STATE OF U. P. THRU SECY.

2017-05-09

RAM SURAT RAM (MAURYA)

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JUDGMENT : Ram Surat Ram (Maurya), J. Heard Sri Raj Kumar Dhama for the petitioner and Standing Counsel for State. 2. The writ petition has been filed against the order of Sub Divisional Officer dated 30.7.2015 setting aside the ex parte preliminary decree as well as final decree passed in the partition suit and the order of Additional Commissioner dated 28.12.2016 dismissing the revision of the petitioner against the aforesaid order. 3. The petitioner filed a suit for partition of joint holding impleading Surendra Singh as defendant-1. It is alleged that Surendra Singh filed his written statement admitting the claim of the petitioner as such preliminary decree was passed by the Sub Divisional Officer on 23.11.2013. Thereafter Lekhpal submitted kurra. Lekhpal was examined and statement of parties were also recorded in respect of kurra. Thereafter final decree was passed by Sub Divisional Officer dated 25.4.2014. Surendra Singh subsequently filed an application for recall of the ex parte decree stating therein that the petitioner has committed fraud inasmuch as neither any summon of the suit was served upon him nor he appeared before the court below nor he engaged Sri Dinesh Kumar Sharma as Advocate on his behalf. The written statement as well as statement recorded in the court below was filed by some impostor. The petitioner contested the recall application and filed his objection. The Sub Divisional Officer after hearing the parties by order dated 30.7.2015 found that although the land in dispute was recorded in the name of Surendra Singh but the written statement was filed through Sahendra Singh. Thus forgery has been committed by the petitioner. On this finding he recalled the ex parte preliminary decree as well as final decree and restored the suit to its original number. The petitioner challenged the aforesaid order in the revision which has been dismissed by Additional Commissioner on 28.12.2016. Hence this writ petition has been filed. 4. Counsel for the petitioner submits that allegation in the application was that forgery has been committed in the suit. In such circumstances, a separate suit ought to have been filed in stead of restoration application before the court below under Order 9, Rule 13 CPC. As the trial court has no jurisdiction in the matter. In any case the petitioner has moved an application for making inquiry in the matter but no inquiry has been conducted in this respect. In such circumstances, a separate suit ought to have been filed in stead of restoration application before the court below under Order 9, Rule 13 CPC. As the trial court has no jurisdiction in the matter. In any case the petitioner has moved an application for making inquiry in the matter but no inquiry has been conducted in this respect. Thus the impugned order is liable to be set aside. He relied upon the judgment of Supreme Court in Horil v. Keshav and others, 2012 (3) ADJ 183 SC in which it has been held that Order 23, Rule 3 A does not bar the suit based upon the allegation of fraud committed before the revenue court for cancellation of decree. 5. I have considered the arguments of the counsel for the petitioner. 6. Order 23, Rule 3 CPC has been amended by Central Act No.104 of 1976 and a proviso has been added which authorize the court to examine the validity of compromise entered into before the court itself. Thus in exercise of powers under Order 9, Rule 13 CPC, the trial court is competent to invoke his jurisdiction as provided in the proviso to Order 23, Rule 3 CPC and examine the validity of compromise. The case law relied upon by the counsel for the petitioner does not bar the jurisdiction of the trial court to examine the compromise. In this case it has been held that civil suit to challenge the fraudulent decree was maintainable but it had no where held that the court itself is not competent to examine the validity of the compromise. Otherwise Supreme Court in case of Banwari Lal v. Smt. Chando Devi, AIR 1993 SC 1139 has held that the court is competent to examine the validity of compromise, if the fraud has been committed then it was competent to set aside the fraudulent decree. 7. So far as the inquiry of the fraud is concerned, the court for the purposes of deciding the case under Order 9, Rule 13 CPC was satisfied that there was apparent forgery committed in filing the written statement. In as much as land in dispute was recorded in the name of Surendra Singh. While the written statement was filed by one Sahendra Singh. Thus it was not filed by the competent person. 8. In as much as land in dispute was recorded in the name of Surendra Singh. While the written statement was filed by one Sahendra Singh. Thus it was not filed by the competent person. 8. In such circumstances, the decree was obtained by committing fraud has rightly been recalled. This Court in exercise of writ jurisdiction is not competent to enter into this controversy as the petitioner will have every opportunity to contest the suit afresh and no prejudice has been caused to the petitioner. 9. The writ petition has no merit and it is dismissed accordingly.