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2018 DIGILAW 2366 (ALL)

Bhoola Nath v. State Of Uttar Pradesh

2018-11-20

JAYANT BANERJI

body2018
JUDGMENT : Jayant Banerji, J. Heard Shri Arvind Kumar, learned counsel for the applicant, Shri Ashok Kumar Pandey, learned counsel for the Opposite Party Nos. 3 and 4 and the learned AGA for the Opposite Party Nos. 1, 2 and 5. 2. By means of this application, the order dated 9 April 2018 passed by the SubDivisional Magistrate, Tehsil Handia, District Allahabad SDM in Case No.25 of 1998 (Bhoola Nath v. Phool Chand & Ors.), filed under section 145(1) of the Cr.P.C., 1973 has been challenged whereby the disputed property situated at Gata No.126 area 0-1716 in Village Vikrampur, Tehsil-Handia, District Allahabad was directed to be released in favour of the opposite party nos.3 and 4 with a further direction that the possession of the opposite party nos.3 and 4 over the property should not be disturbed. 3. In the affidavit filed in support of the application under section 482 of the Cr.P.C., 1973 it has been stated that in the year 1995, proceedings under section 145 of Cr.P.C., 1973 were initiated by the applicant. The original owner of the plot, namely Bhagwati Prasad, had executed an unregistered mortgage-deed in favour of the applicant on 10 September 1984 and on that basis mutation proceedings were initiated in the year 1993 by the applicant but the application was rejected by the concerned Tehsildar by an order dated 31 March 1993. The applicant preferred an appeal which was allowed by an order dated 8 December 1993. The reference made by the Commissioner, Allahabad Division, Allahabad to the Board of Revenue on the application of the opposite party nos.3 and 4 was decided ex-parte against the opposite party nos.3 and 4 by an order dated 20 April 2004 and the restoration application was also rejected by an order dated 6 October 2010. The writ petition filed by the opposite party nos.3 and 4 was also dismissed by the Court on 20 December 2012 after observing that the rights of the parties can be determined in a declaratory suit. The opposite party nos.3 and 4 then instituted a declaratory suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 which was dismissed in default on 16 April 2015. The opposite party nos.3 and 4 then instituted a declaratory suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 which was dismissed in default on 16 April 2015. It is stated that earlier a Receiver was appointed by the SDM exercising powers under section 146(1) of the Cr.P.C., 1973 and by means of an order dated 3 January 2008, the possession of the disputed land was directed to be released in favour of the applicant. A criminal revision filed by the opposite party nos.3 and 4 came to be allowed and the order of the SDM dated 3 January 2008 was set aside and the matter was remanded. 4. It is stated that since the applicant was in possession of the disputed property, he moved an application seeking withdrawal of the proceedings under section 145 of the Cr.P.C., 1973 which application came to be allowed by an order of the SDM dated 13 October 2017. The opposite party nos.3 and 4 then moved an application before the SDM for restoration of the suit proceedings and the SDM-opposite party no.5, by means of the impugned order dated 9 April 2018, proceeded to release the disputed property situated in Gata No.126 having an area of 0-17-16 at village Vikrampur, Tehsil-Handia, District Allahabad in favour of the opposite party nos.3 and 4 with a further direction to the applicant not to disturb their possession. 5. A counter affidavit has been filed on behalf of the opposite party nos.3 and 4 in which it has been stated that pursuant to the order of this Court dated 20 December 2010 passed in Writ-B No.71190 of 2010, a declaratory suit was instituted by the answering opposite parties which was dismissed in default against which a restoration application was filed which is pending. It is stated that the applicant is a cunning person who has resorted to fraud and is trying to grab the property of the answering opposite parties on the basis of fake and manipulated documents. 6. A rejoinder affidavit has been filed on behalf of the applicant reiterating the averments made in the affidavit filed in support of the application under section 482 of the Cr.P.C., 1973 7. 6. A rejoinder affidavit has been filed on behalf of the applicant reiterating the averments made in the affidavit filed in support of the application under section 482 of the Cr.P.C., 1973 7. It is the contention of the learned counsel for the applicant that once the order dated 13 October 2017 was passed by the SDM on the application of the applicant concluding the proceedings under Section 145 Cr.P.C., 1973 and the said order had attained finality, there was no occasion for the SDM to review the order dated 13 October 2017 by means of his order dated 9 April 2018 and that in case, there was any likelihood of breach of peace regarding the disputed land, the opposite parties should have initiated fresh proceedings under section 145 of the Cr.P.C., 1973 It is, therefore, contended that the impugned order dated 9 April 2018 is wholly without jurisdiction in view of a clear mandate of section 362 of Cr.P.C., 1973 and is liable to be quashed. 8. It is contended by the learned counsel for the opposite party nos.3 and 4 that the proceedings of the suit under section 145 of the Cr.P.C., 1973 were continuing and the regular date was fixed on 8 November 2017 which was prematurely listed on 13 October 2017 on the application of the applicant-Bhoola Nath and, therefore, the suit was dismissed in default. It is contended that the application of the applicant for withdrawal of the proceedings under section 145 of the Cr.P.C., 1973 was prepared and drafted on 27 September 2017 but was moved before the Court of SDM on 13 October 2017 and on the very same day, the application was allowed without affording an opportunity to the opposite party nos.3 and 4. It is contended that in view of this fraud committed by the applicant, the SDM was justified in passing the impugned order dated 9 April 2018. It is contended that in view of this fraud committed by the applicant, the SDM was justified in passing the impugned order dated 9 April 2018. In support of his contentions, learned counsel for the opposite party nos.3 and 4 has relied upon the question and answer dated 4 June 2016 obtained from the Court of SDM, Handia (Annexure-7 to the counter affidavit), the application dated 27 September 2017 filed by the applicant on 13 October 2017 (Annexure-11 to the counter affidavit), the reply of the opposite party no.2 and the application dated 24 November 2017 filed by the opposite party nos.3 and 4 for setting aside the order dated 13 October 2017 passed by the SDM, opposite party no.5 (Annexure-12 to the counter affidavit). 9. For considering the argument of learned counsel for the applicant that the impugned order dated 9 April 2018 suffers from lack of jurisdiction in view of the specific provision of section 362 of the Cr.P.C., 1973 the Court would have to see whether the order dated 13 October 2017 passed by the SDM, opposite party no.5, could be altered or reviewed. The contention of learned counsel for the opposite party nos.3 and 4 is that the order dated 13 October 2017 was obtained by fraud. The document enclosed with the counter affidavit as Annexure No.7 pertains to the proceedings under Section 145 Cr.P.C., 1973 in which the question posed is whether on 13 October 2017 the general date of 8 November 2017 was fixed and the answer was in the affirmative. 10. This document, prima facie, reveals that 13 October 2017 was a date fixed in the case. Even in the application enclosed as Annexure-12 to the counter affidavit, it has been stated that 13 October 2017 was the date fixed in the case and thereafter the next date fixed was 8 November 2017. Alongwith the counter affidavit, the opposite party nos.3 and 4 have not enclosed the order-sheet of the case to demonstrate that 13 October 2017 was not a date fixed in the case. The photocopy of the order dated 13 October 2017 that has been enclosed alongwith the affidavit in support of the application at page 48/49 appears to be a photocopy of the certified copy of the order-sheet. The photocopy of the order dated 13 October 2017 that has been enclosed alongwith the affidavit in support of the application at page 48/49 appears to be a photocopy of the certified copy of the order-sheet. In this view of the matter, we cannot subscribe to the submission made by the learned counsel for the opposite party nos.3 and 4 that the order dated 13 October 2017 was obtained by the applicant after playing fraud on the court below. Fraud has not only to be pleaded but has to be clearly demonstrated and established before the Court which the opposite party nos.3 and 4 have failed to do. 11. A perusal of the order impugned dated 9 April 2018 reveals that the court below has proceeded to record its finding on merits without analyzing whether any fraud was practiced by the applicant. Section 362 of the Cr.P.C., 1973 is as follows:- "362. Court not to after judgement. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." 12. Thus, for seeking benefit of the savings phrase incorporated in Section 362 Cr.P.C., 1973 it was necessary for the opposite parties to have conclusively demonstrated that the order dated 13 October 2017 was passed as a result of fraud, or, that there is any other provision in the Cr.P.C. or any other law for the time being in force for alteration of the order dated 13 October 2017 by the SDM by means of the impugned order dated 9 April 2018. 13. In the impugned order dated 9 April 2018, the SDM has sought to justify the rehearing of the matter on the application of the opposite party nos.3 and 4 dated 24 November 2017 on the ground that the order of the SDM dated 13 October 2017 does not disclose as to whom the attached property is to be given. 14. Learned counsel for the opposite party nos.3 and 4 has relied upon a judgment of this Court rendered in the matter of Raghuvira & 4 Ors. v. State of U.P., 1990 CrLJ. 14. Learned counsel for the opposite party nos.3 and 4 has relied upon a judgment of this Court rendered in the matter of Raghuvira & 4 Ors. v. State of U.P., 1990 CrLJ. 2735, to submit that the order dated 13 October 2017 passed by the Court below cannot be termed to be a judgment or final order as conceived in Section 362 Cr.P.C., 1973 However, a perusal of the cited judgment reveals that the Court was considering proceedings in a criminal revision which was dismissed for default when no one appeared for the revisionist. In that case, it was contended that the criminal revision could not be dismissed for default and, therefore, the Court proceeded to adjudge that an order dismissing an application for revision for default cannot taken as either a final order or judgment and, therefore, the review of that order or alteration of such an order is not barred under Section 362 Cr.P.C., 1973 In the present case, however, the facts are different and the afforested judgment is distinguishable. 15. Learned counsel for the opposite party nos.3 and 4 has also relied upon a judgment of Baxis Singh v. Sukhdev Singh (dead) through L.R. & Ors., (2018) 5 SCC 338 , in an attempt to demonstrate that suppression of material facts by the applicant would render the application to be dismissed. However, the present case is distinguishable of facts. 16. In my opinion, the impugned order dated 9 April 2018 seeks to alter and review the final order dated 13 October 2017 which is not permissible in the facts and circumstances of the case. 17. This application is, accordingly, allowed and the order dated 9 April 2018 (Annexure-9 to the affidavit filed in support of the application) is set aside. It is, however, open to the opposite party nos.3 and 4 to challenge the order of the SDM dated 13 October 2017 in accordance with law and/or to pursue their other remedies before the Courts below.