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2018 DIGILAW 31 (ALL)

Mahdei v. Addl. Commissioner (Admn. ), Varanasi

2018-01-04

MAHESH CHANDRA TRIPATHI

body2018
JUDGMENT : MAHESH CHANDRA TRIPATHI, J. 1. Heard Shri C.K. Parekh, learned counsel for the petitioner and Shri R.C. Singh, learned counsel for the respondents. 2. The petitioner is before this Court assailing the order dated 28.05.2013 passed by the Addl. Commissioner (Admn.), Varanasi Division, Varanasi in Revision No.114 of 2011 (Mahdei v. Ajai Kumar & Ors.) under Section 219 of Land Revenue Act as well as the order dated 29.6.2011 passed by the Naib Tehsildar, Athgawan, Distt. Varanasi in Case No.14/495 and 66/517 under Section 34 of Land Revenue Act and for a direction to quash the entire aforesaid proceedings under Section 34 of Land Revenue Act. 3. On the matter being taken up on 10.07.2013, the Court has proceeded to pass the following interim order in favour of the petitioner:- "Heard learned counsel for the petitioner Sri C.K. Parekh. Notice has been accepted by Sri Vivekanand holding brief of Sri Prem Prakash Yadav for the respondent nos. 5 to 7 and Sri H.C. Dwivedi has also accepted notice for the same respondents. Sri Manoj Kumar Yadav has accepted notice for the Gaon Sabha. Learned Standing Counsel has accepted notice for the respondent nos. 1 and 2. All the respondents pray for and are granted three weeks time to file a counter affidavit. Learned counsel for the petitioner shall file a rejoinder affidavit within three weeks thereafter. List thereafter. Admit. This writ petition raises a pure question of jurisdiction of the authorities to proceed to somehow the other help out the respondent nos. 5 to 7 which is apparent from their conduct and the orders on record. The respondents have utterly failed to give any respect to the final judgment of the High Court dated 16.10.2012 in writ petition no. 32612 of 2008 whereby the possession of the petitioner has been prima facie accepted and confirmed in the proceedings arising out of the suit in relation to the land in dispute. Apart from this, the probate proceedings initiated by the respondents is still pending. In the absence of any declaration in favour of the respondents, the idea to proceed to grant mutation to the respondent nos. 5 and 7 appears to be patently without jurisdiction. Accordingly, until further orders of the court, the respondent no. Apart from this, the probate proceedings initiated by the respondents is still pending. In the absence of any declaration in favour of the respondents, the idea to proceed to grant mutation to the respondent nos. 5 and 7 appears to be patently without jurisdiction. Accordingly, until further orders of the court, the respondent no. 2 Naib Tehsildar and any other authority under the U.P. Land Revenue Act, 1901 is hereby restrained from further proceeding in the matter in question." 4. This much is also reflected from the record that the petitioner had also filed injunction Suit No.841 of 2007 for the property in question against the private respondents in which on 3.2.2008 interim order has been passed against the respondents, which has been finally affirmed by this Court in Writ Petition No.32612 of 2008 vide order dated 16.10.2012. Only in this backdrop, the aforesaid interim order had been passed by this Court. 5. It is also relevant to indicate that in connected Matters Under Article 227 No.1878 of 2017 (Mahdei v. Ajai Kumar & Ors.) the petitioner has assailed the order dated 11.4.2008 passed by the Vth Addl. District Judge, Varanasi by which the amendment application under Section 295 of Indian Succession Act, 1925 in Probate Case No.57 of 2017 (Ajay Kumar v. Mahdei) has been rejected. In the said writ petition, the petitioner has also assailed the entire proceedings of Probate Case No.57 of 2007. This Court vide order dated 23.5.2008 in the said writ petition has stayed the further proceedings in Probate Case No.57 of 2007, which was continuing till now. Finally, the said writ petition has been allowed by a judgment passed today with following observations:- "Heard Shri C.K. Parekh, learned counsel for the defendant-petitioner and Shri R.C. Singh, learned counsel for the plaintiff-respondents. The petitioner is before this Court assailing the order dated 11.4.2008 passed by the Vth Addl. District Judge, Varanasi by which the amendment application under Section 295 of Indian Succession Act, 1925 in Probate Case No.57 of 2007 (Ajay Kumar v. Mahdei) has been rejected. The petitioner has further assailed the entire proceedings of Probate Case No.57 of 2007. On the matter being taken up on 23.05.2008, further proceedings in Probate Case No.57 of 2007 has been stayed by this Court and the matter is pending since then. The petitioner has further assailed the entire proceedings of Probate Case No.57 of 2007. On the matter being taken up on 23.05.2008, further proceedings in Probate Case No.57 of 2007 has been stayed by this Court and the matter is pending since then. This much is reflected from the record in question that the defendant-petitioner is wife of late Hira Lal Vishwakarma, who died leaving behind movable and immovable properties in question. The plaintiff-respondents had claimed that Late Hira Lal Vishwakarma, husband of the petitioner executed a registered will dated 26.06.2007 depriving the petitioner from the properties in question. In this backdrop, the plaintiff-respondents filed Probate Case No.57 of 2007 under Section 276 of Indian Succession Act (in short "the Act") before the District Judge, Varanasi. Admittedly in the said proceedings the defendant-petitioner had filed her caveat and consequently the objection in the aforesaid probate case has been filed by the defendant-petitioner. This much is also reflected from the record in question that the petitioner had also filed injunction Suit No.841 of 2007 against the respondents in which on 3.2.2008 an interim order has been passed against the respondents. It also appears that the defendant-petitioner had moved an application under Section 295 of the Act in aforesaid probate case to treat the same as regular suit as in view of Section 295 of the Act in case of dispute the probate case is to be converted into regular suit and it will go on like regular suit in accordance with the provisions of Civil Procedure Code and the provisions of Rule 504 of General Rules (Civil) 1957 shall apply in such matters. The said application had been rejected by the Vth Addl. District Judge, Varanasi vide impugned order dated 11.4.2008 on the ground that said objection is legal in nature and the same can very well be raised at any point of time. The said order has been assailed by means of present writ petition in which interim order was granted by this Court on 23.05.2008 staying the further proceedings of Probate Case No.57 of 2007. Since then the proceeding is pending before this Court and no progress has also been taken in the aforesaid probate case. The said order has been assailed by means of present writ petition in which interim order was granted by this Court on 23.05.2008 staying the further proceedings of Probate Case No.57 of 2007. Since then the proceeding is pending before this Court and no progress has also been taken in the aforesaid probate case. Shri C.K. Parekh, learned counsel for the defendant-petitioner has vehemently refuted the impugned order and in support of his submissions he has placed reliance on Section 295 of Indian Succession Act as well as provisions contained in Rule 504 of General Rules (Civil) 1957. It is sought to be contended that once in the probate case objection has been made by the caveator, then in such eventuality the application under Section 295 of the Act was liable to be allowed and the probate case was liable to be conducted as regular civil suit. The contentions advanced by Shri C.K. Parekh, learned counsel for the defendant-petitioner is moreover accepted by Shri R.C. Singh, learned counsel for plaintiff-respondents but he very fairly states that the aforesaid probate case may be decided expeditiously and due to pendency of the said probate case the parties are sufferring irreparable loss and injury since very beginning. Heard rival submissions and perused the record. In order to appreciate the controversy in hand, it would be appropriate to have a glance on the provisions contained under Section 295 of the Act as well as Rule 504 of General Rules (Civil) 1957. Section 295 of the Act is quoted as under:- "295. Procedure in contentious cases. - In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant." Rule 504 of General Rules (Civil) is reproduced as under:- "504. Conversion of application into suit- Upon the affidavit in support of the caveat being filed (notice thereof shall immediately be given by the caveator to the petitioner) the proceedings shall be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff, and the caveator shall be the defendant, the petition for probate or letters of administration being registered as and deemed a plaint filed against the caveator, and the objection filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code." In the aforesaid circumstances, the Court is of the considered opinion that once an application has been filed by the defendant-petitioner under Section 295 of the Act in the aforesaid probate case in question, then in such situation, it was incumbent upon the court concerned to allow the said amendment application and to proceed and treat the said probate proceedings as regular suit proceedings. It is well settled that the power of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even to exercise suo moto. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removal of any obstacle therein. Sometime even the power under Art.227 is wider than conferred on the High Court by Art.226 of the Constitution of India in the sense that power of superintendence is not subject to those technicalities of procedure or traditional fetters, which are found in certiorari jurisdiction. It is also settled proposition that in order to safeguard against a mere appellate or revisional jurisdiction being exercised in the garb of exercise of supervisory jurisdiction under Art.227 of the Constitution of India, the courts have advised self-imposed rules and discipline on their part. In such situation the supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. In such situation the supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. Such restraint is meant only in such situation, wherein so long as an error is capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction though available to be exercised only at the conclusion of the proceedings, it would be sound exercise of discretion on the part of High Court to refuse to exercise power of superintendence during the pendency of the proceeding. Hon'ble the Supreme Court in Baby v. Travancore Devaswom Board & Ors., (1998) 8 SCC 310 clarified that inspite of revisional jurisdiction being not available to the High Court, it still had power under Art.227 of the Constitution of India to quash the order passed by the Tribunal, if the finding of fact has been arrived at by non-consideration of the relevant and material documents, consideration of which could have led to an opposite conclusion. This power of High Court under the Constitution of India is always in addition to the revisional jurisdiction conferred on it. The Court finds that no doubt the scope of interference is limited under Art.227 of the Constitution of India but under the present facts and circumstances the Court is of the considered opinion that the court concerned had erred in law in non-consideration of the relevant provisions of law and as such the present matter is fit to intervene under Art.227 of the Constitution of India. The Hon'ble Supreme Court in M/s Shiv Cotex Versus Tirgun Auto Plast P. Ltd and others, 2011 (89) ALR 232, has made the following observations:- ".................It is high time that courts become sensitive to delays in justice delivery system and realize that adjournments do dent the efficacy of judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The Courts, particularly Trial Courts, must ensure that on every date of hearing, effective progress takes place in the suit." In view of above, the order impugned cannot sustain and is accordingly set aside. The Courts, particularly Trial Courts, must ensure that on every date of hearing, effective progress takes place in the suit." In view of above, the order impugned cannot sustain and is accordingly set aside. With the consent of learned counsel for the parties, the matter is remitted back to the court concerned to proceed in the matter in accordance with law and try to conclude the proceedings expeditiously and preferably within one year from the date of production of certified copy of this order and without granting unnecessary adjournment to either of the parties. Learned counsel for the parties also assure that no unnecessary adjournment would be taken by the parties before the court concerned. The writ petition is allowed accordingly." 6. In such circumstances, this Court is of the considered opinion that in the instant case the mutation proceedings in question under the U.P. Land Revenue Act cannot be permitted to continue on the behest of contesting respondents till the issue is synchronised between the parties in Suit No.841 of 2007 as well as in Probate Case No.57 of 2017. 7. The writ petition is disposed of accordingly.