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2020 DIGILAW 413 (ALL)

Parvez Ahmad v. District Judge, Balrampur

2020-02-06

SANGEETA CHANDRA

body2020
JUDGMENT : Sangeeta Chandra, J. 1. Heard the learned Counsel for the petitioner. 2. The petitioner is aggrieved by the order dated 13.5.2013 passed by the opposite party No. 1-learned District Judge, Balrampur, in Civil Revision No. 64 of 2013 arising out of proceedings on Regular Suit No. 499 of 1996 (Parvez Ahmad v. Mahiuddin and others), still pending disposal before the learned Trial Court. 3. It has been submitted by the learned Counsel for the petitioner that the petitioner had filed a Regular Suit for permanent injunction against the opposite party Nos. 3 to 10 in the Court of Civil Judge (Senior Division), Balrampur, for permanent injunction. During the pendency of the case, the petitioner moved an application for amendment of the plaint for adding relief of declaration as well as for adding the pedigree of the parties. The amendments were such as would not change the nature of the dispute being considered by the learned Trial Court. Learned Trial Court invited objections on the said application and then rejected the same by its order dated 12.10.2010 by observing that the nature of the Suit is going to be changed and therefore, the amendment cannot be allowed. 4. Learned Counsel for the petitioner further submits that aggrieved by the said order, the petitioner preferred a Civil Revision No. 64 of 2013 before the learned District Judge, Balrampur, which has been dismissed without giving any opportunity of hearing to the petitioner as it is evident from the order impugned filed as Annexure-2 to the petition that neither of the parties were present before the learned District Judge, when the Revision came up for hearing. 5. It has been submitted by the learned Counsel for the petitioner that it is a settled law that in the absence of the parties no decision can be rendered by a Court as has been held by the Hon'ble Supreme Court in Harbans Pershad Jaiswal (dead) by Legal Representatives v. Urmila Devi Jaiswal (dead) by Legal Representatives. (2014) 5 SCC 723 : 2014 (105) ALR 462 (SC) : 2014 (139) AIC 153 This Court has perused the judgment rendered by the Supreme Court. The Supreme Court was considering the case where the respondents had filed a Suit seeking partition of two properties claiming half-share each in both these properties. (2014) 5 SCC 723 : 2014 (105) ALR 462 (SC) : 2014 (139) AIC 153 This Court has perused the judgment rendered by the Supreme Court. The Supreme Court was considering the case where the respondents had filed a Suit seeking partition of two properties claiming half-share each in both these properties. The Trial Court decreed the Suit in respect of one property but dismissed the same qua the other property. The respondent filed an Appeal before the High Court against the portion of the decree against it. Likewise, the appellant also filed an Appeal against the other portion of the decree against him. On the day of final hearing all these appeals, the Counsel for the appellant did not appear before the Court. The High Court heard the Counsel for the respondent on the merits of the Appeal and rendered the judgment whereby the Appeal of the respondent was allowed and that of the appellant was dismissed. The appellant filed applications for setting aside the ex-parte decree. But the High Court found that no sufficient cause was shown for non-appearance of their Counsel and accordingly, rejected the application by giving reasons. 6. The sole contention of the appellant was that the Appeal filed by the appellant could not have been dismissed on merits when the appellant remained unrepresented and at the most it could be dismissed only in default. The Supreme Court dismissed the Appeals but observed in Paragraphs 9 and 10 that As per Order XLI, Rule 17, C.P.C., the Appeal can be dismissed in case of the appellant's default in appearance. The Explanation to Order XLI, Rule 17 (1), C.P.C. makes it clear that the Court is not empowered to dismiss the appeal on the merits if the respondent does not appear. Such provision is given in Rule 21 of Order XLI of the C.P.C.' 7. 'This Court has considered the arguments raised and the judgment cited of the Supreme Court, it finds that the judgment has been rendered with respect to Order XLI, Rules 17, 19 and 21 of the C.P.C. It does not relate to a Revision being filed under section 115, C.P.C., it is a well-settled that in Revisional jurisdiction the Court exercises very limited powers and irregularity of procedure can be interfered with but shall not interfere with where substantial justice has resulted from the order under challenge in such Revision. 8. 8. Learned Counsel for the petitioner has placed reliance upon the Division Bench judgment of this Court in Nikhil Kumar Singh v. State of U.P. and others, 2015 (113) ALR 499 (LB) where the Court was considering a Special Appeal where a writ petition was dismissed for non-prosecution as well as on merits holding that no case is made out for interference as prayed. An application for Restoration/Recall of order was rejected as not maintainable. This Court observed that the application for Restoration/Recall was maintainable as the order passed by the Writ Court was an order passed for dismissal in the absence of the Counsel for the appellant. This Court observed that an inadvertent error on the part of the learned Counsel for the appellant in not noticing the listing of the case or in remaining absent, cannot and should not result in miscarriage of justice by precluding the appellant from pursuing a remedy in writ petition. From the bare mention of the facts as aforesaid it is evident that the judgment in Nikhil Kumar Singh (supra) is inapplicable to the case in hand. 9. This Court has perused the order impugned which is of the year 2013, this petition is filed by the petitioner on 28.1.2020. The petitioner has explained the delay by saying that he had moved a Recall application against the order dated 13.5.2013 which has been rejected by the learned District Judge only on 13.11.2019. 10. Having considered the order impugned, this Court finds no good ground to interfere in the order impugned as the Civil Suit is pending since 1996 and the petitioner could not show before the Revisional Court or even before the Trial Court that he had no knowledge of the pedigree of the parties at the time of institution of the Suit and that even with due diligence being exercised by him such knowledge could not be derived earlier than in 2013 when the application was filed. 11. This Court is under Article 227 exercises its very limited jurisdiction. The order impugned in this petition is neither patently illegal or arbitrary or perverse for this Court to set it aside in its supervisory jurisdiction. It is only one of the courses is open to the learned Trial Court and the Revisional Court and a plausible reason for deciding an application for amendment has been given in the order impugned. 12. It is only one of the courses is open to the learned Trial Court and the Revisional Court and a plausible reason for deciding an application for amendment has been given in the order impugned. 12. Petition is dismissed.