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2021 DIGILAW 528 (JK)

Swati Gupta v. Romesh Chand

2021-10-06

PANKAJ MITHAL, RAJNESH OSWAL

body2021
JUDGMENT : 1. This intra court appeal has been preferred against order dated 25.09.2014 passed in OWP No. 702 of 2013 whereby preliminary objection raised by the deceased-appellant regarding the maintainability of the second writ petition filed by the respondent Nos. 1 to 3, has been rejected and order dated 14.09.2015 whereby the review petition filed against order dated 25.09.2014 has been dismissed with costs of Rs. 10,000/- by the learned Single Judge. 2. During the pendency of present appeal, the challenge thrown to the order dated 14.09.2015 passed in review petition before the learned Single Judge was withdrawn by the appellant. 3. The present appeal has been filed by the appellant impugning the judgment dated 25.09.2014 primarily on the ground that the finding recorded by the learned Single Judge that the order dated 14.05.2013 was passed in presence of the deceased-appellant in OWP No. 418 of 2013 is factually incorrect and as a matter of fact, no such statement was made on 25.09.2014 by either of the counsels who appeared on behalf of the deceased- appellant. Rather the fact remains that neither the deceased-appellant nor his counsel was present on 14.05.2013 when the first writ petition was withdrawn. 4. It is further stated that even the writ petitioners/respondent Nos. 1 to 3 never pleaded before the learned Single Judge in their reply that such statement was made by the learned counsel for the appellant. The order dated 14.05.2013 operates as a bar for filing second writ petition on the ground that the requirements o f provisions contained in Order 23 Rule 1(3) of the Code of Civil Procedure (for short the Code) have not been satisfied and the respondent Nos. 1 to 3 were required to prove that they after withdrawing earlier writ petition, had cause available for filing the fresh writ petition. 5. Sh. O.P. Thakur, learned senior counsel assisted by Sh. 1 to 3 were required to prove that they after withdrawing earlier writ petition, had cause available for filing the fresh writ petition. 5. Sh. O.P. Thakur, learned senior counsel assisted by Sh. R.K.S. Thakur, Advocate appearing for the appellant has submitted that the writ petitioners cannot file another writ petition on the similar cause of action and it was for the writ petitioners to establish before the learned Single Judge that there was formal defect in the writ petition filed by them earlier that was allowed to be withdrawn conditionally vide order dated 14.05.2013 and further that the learned Single Judge has wrongly observed in the order that the counsel for the deceased-appellant was present on 14.05.2013, when the writ petition was allowed to be withdrawn conditionally. 6. Per contra, Sh. L.K. Sharma, learned senior counsel assisted by Sh. Mohit Kumar appearing for the respondents 1 to 3 (writ petitioners) has vehemently argued that as per section 67 of the Tenancy Act, the newly substituted appellant has no locus standi to continue with the present appeal and further that the provisions contained in Order 23 of the Code are not applicable in its entirety to the writ proceedings. 7. In rebuttal, Sh. O.P. Thakur, learned senior counsel has submitted that the Custodian Evacuee Property, Jammu, respondent No. 5 herein vide order dated 11.07.2016, pursuant to the application made by the newly substituted appellant on the basis of the Will executed by her father for granting consent in her favour for having inherited/succeeded rights after the death of her father who was occupancy tenant, has directed the Assistant Custodian/Tehsildar Bishnah to take appropriate action and has further observed that the office of Custodian Evacuee Property has no objection for bringing on record the appellant as legal heir on the basis of Will after the death of her father-Chaman Lal who was occupancy tenant. Sh. Thakur further argued that the writ petitioners have not challenged the said order till date. 8. Heard and perused the record. 9. The brief facts which are necessary for the disposal of the present appeal are that the respondent Nos. Sh. Thakur further argued that the writ petitioners have not challenged the said order till date. 8. Heard and perused the record. 9. The brief facts which are necessary for the disposal of the present appeal are that the respondent Nos. 1 to 3/writ petitioners filed a writ petition against one Chaman Lal, the deceased appellant and other respondents whereby a prayer was made for quashing order dated 11.02.2013 passed in revision petition, titled, Ramesh Chand and others vs Custodian Evacuee Property, Jammu and also for the quashing of order dated 01.10.2012 passed by the Custodian Evacuee Property, Jammu, respondent No. 5 herein as well as for quashing of order dated 20.11.2012 passed by the Custodian Evacuee Property, Jammu by virtue of which the respondent No. 6 has been directed to resume the possession of land measuring 20 kanal 8 marlas comprising under khasra Nos. 175 and 177 of village Jinder Khurd, Tehsil, Bishnah and also a prayer was made for commanding the respondents 1 to 3 therein (respondent Nos. 4 to 6 herein) not to allot the said land in favour of any other persons except the writ petitioners. 10. Learned Single Judge vide order dated 02.04.2013 in earlier writ petition filed by the writ petitioners bearing OWP No. 418 of 2013 issued notice to the respondents therein and directed maintenance of status quo on spot as it existed on the said date. Thereafter, the writ petitioners filed an application before the learned Single Judge for seeking permission either to amend the writ petition or to allow them to withdraw the writ petition with liberty to file fresh writ petition. 11. The learned Single Judge vide order dated 14.05.2013 dismissed the said writ petition as withdrawn with liberty to file afresh if cause is available. Thereafter the writ petitioners filed another writ petition bearing OWP No. 702 of 2013 and the learned Single Judge vide order dated 16.05.2013 issued notice and simultaneously kept the impugned order dated 11.02.2013 in abeyance and further the respondent Nos. 5 and 6 were directed to allow the writ petitioners to sow the crops. The deceased appellant caused his appearance before the learned Single Judge and filed response in the writ petition and the preliminary objection was raised with regard to the maintainability of the writ petition in view of the earlier withdrawal of the writ petition by the writ petitioners/respondent Nos. The deceased appellant caused his appearance before the learned Single Judge and filed response in the writ petition and the preliminary objection was raised with regard to the maintainability of the writ petition in view of the earlier withdrawal of the writ petition by the writ petitioners/respondent Nos. 1 to 3. 12. The learned Single Judge vide order dated 25.09.2014 rejected the preliminary objection raised by the deceased appellant with regard to the maintainability of the writ petition and thereafter the deceased appellant also filed a review petition bearing Review (OWP) No. D-14/2014 against the order dated 25.09.2014 passed by the learned Single Judge, however, the same too was dismissed by the learned Single Judge with costs of Rs. 10,000/- vide order dated 14.09.2015. 13. During the pendency of the present appeal, the appellant-Chaman Lal died and the appellant was substituted by his daughter-Swati Gupta vide order dated 09.11.2016. Thereafter, an objection was raised with regard to the status of the Swati Gupta being the legal representative in view of section 67 of the Tenancy Act and this Court vide order dated 27.12.2018 clarified that the order dated 09.11.2016 did not preclude hearing of all legal and factual objections of the parties including those raised to challenge the entitlement of the party who stood substituted in place of the deceased-appellant. 14. Following two issues arise for adjudication:- (i) whether the newly substituted appellant cannot continue with the present appeal filed by the deceased-appellant who happens to be her father in view of section 67 of the Tenancy Act? (ii) whether the provisions contained in Order 23 Rule 1 of the Code are applicable in its entirety to the writ proceedings? 15. So far as issue No. 1 is concerned, it requires to be noted that the daughters are excluded from inheriting the occupancy rights by virtue if section 67 of the Tenancy Act. Simultaneously section 68 provides for succession of appointed heir. The perusal of section 68 of the Tenancy Act reveals that the appointed heir can succeed to the occupancy rights with the consent of the landlord. The land admittedly is evacuee property so the appointment of an heir by an occupancy tenant with the consent of landlord is not barred. 16. Further a perusal of Order 22 of the Code reveals that after the demise of the original plaintiff/appellant, his/her legal representatives can be brought on record. The land admittedly is evacuee property so the appointment of an heir by an occupancy tenant with the consent of landlord is not barred. 16. Further a perusal of Order 22 of the Code reveals that after the demise of the original plaintiff/appellant, his/her legal representatives can be brought on record. The legal representative as defined in section 2 (11) of the Code means a person who in law represents the estate of deceased person and includes any person who intermeddles with the estate of the deceased. The definition of the legal representation is inclusive in character and is not restricted to class of heirs only but also include even intermeddlers. So far as the status of newly substituted appellant being the daughter of the deceased appellant is not in dispute. The respondent Nos. 1 to 3 have not been able to rebut the contentions raised by the newly substituted appellant that she had filed an application before the Custodian Evacuee Property Jammu for giving consent in her favour for inheriting/succeeding rights on account of death of her father with regard to land in dispute and consequential order dated 11.07.2016 passed by the Custodian Evacuee Property. The respondent Nos. 1 to 3/writ petitioners have not thrown any challenge to the order dated 11.07.2016 passed by the Custodian Evacuee Property, Jammu i.e. respondent No. 5 herein. So the contention raised by the respondent Nos. 1 to 3/writ petitioners with regard to the locus of the appellant to continue with the appeal is without any force as such, the same is rejected. More so, the other legal heirs of the deceased appellant have not disputed the status of appellant. 17. The second issue is with regard to the applicability of Order 23 of the Code with regard to the writ proceedings. A perusal of the order passed by the learned Single Judge reveals that the learned Single Judge has recorded in his order that Mr. Puneet Jindal, learned senior counsel appearing for the deceased appellant admitted that the order dated 14.05.2013 was passed in presence of the counsel for the deceased-appellant. The said fact was/is disputed vehemently by the deceased-appellant as well as by the newly substituted appellant by drawing the attention of this Court to the pleading of the respondents 1 to 3 as well as cause list dated 14.05.2013. The said fact was/is disputed vehemently by the deceased-appellant as well as by the newly substituted appellant by drawing the attention of this Court to the pleading of the respondents 1 to 3 as well as cause list dated 14.05.2013. In cause list, the name of the counsel of the deceased appellant has not been shown. Be that as it may, the only issue that arises is with regard to the applicability of Order 23 of the Code to the writ proceedings. 18. In Sarguja Transport Service v State Transport Appellate Tribunal, Gwalior and others, 1987 AIR(SC) 98, the Apex Court while considering the question as to whether once the writ petition stands withdrawn, the subsequent writ petition on the same cause of action can be filed or not, has observed in para 8 as under: "The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying Rule 1 Order 23 of the Code is adopted in respect of writ petitions filed under Article 226/227 of the Constitution also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may be stated in Daryao v. State of U.P., (1962) SCR 574 in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Article 32 of the Constitution because in such a case there has been no decision on the merits by the High Court. He may be stated in Daryao v. State of U.P., (1962) SCR 574 in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Article 32 of the Constitution because in such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao's case (supra) is to be found at page 593 and it is as follows: "If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other." 19. Thus, it is evident that the principle underlying Rule 1 Order 23 of the Code has been extended by the Apex Court to a case of withdrawal of the writ petition also. In the abovementioned case, the Apex Court was seized of different situation where leave was not granted. In the instant case, the learned Single Judge has granted the leave to withdraw the writ petition with liberty to file fresh if the cause is available. The contention of the appellant is that there had to be a formal defect in the writ petition that entitled the respondent Nos. 1 to 3 to withdraw the writ petition. The Apex Court has no where made applicable the provisions contained in Order 23 Rule 1 of the Code in its entirety to the writ proceedings and it is only the underlying principle of the Order 23 Rule 1 of the Code that has been made applicable to the writ proceedings. It requires to be noted that the while exercising powers under section 226/227 of the Constitution, the High Court is discharging its constitutional obligations and the same cannot be curtailed by the reference to and strict compliance of procedural laws. 20. It requires to be noted that the while exercising powers under section 226/227 of the Constitution, the High Court is discharging its constitutional obligations and the same cannot be curtailed by the reference to and strict compliance of procedural laws. 20. Even if for the sake of arguments it is assumed that Order 23 Rule 1 is applicable in its entirety even then the perusal of the Order 23 Rule 1(3) of the Code reveals that when the Court is satisfied that the suit will fail by reason of some formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter, the permission can be granted to the plaintiff to file the suit afresh. It is not only because of formal defect only that the permission can be granted to file a fresh suit on the same cause of action but on account of sufficient grounds too, such permission can be granted by the Court. The perusal of the order dated 14.05.2013 reveals that no reason has been assigned by the learned Single Judge while allowing the respondent Nos. 1 to 3 writ petitioners therein to withdraw the writ petition conditionally. The perusal of the application filed by the writ petitioners for either amending the writ petition or withdrawal of the writ petition reveals that the writ petitioners wanted to incorporate the additional facts and grounds of challenge to the order impugned in the earlier writ petition and the writ petitioners also wanted to allege mala fide. The comparison of averments made in both the writ petitions reveal that the writ petitioners have not only impleaded the then Revenue Minister as party respondent in the subsequent writ petition but have also alleged mala fide on the part of the respondent No. 6. 21. The comparison of averments made in both the writ petitions reveal that the writ petitioners have not only impleaded the then Revenue Minister as party respondent in the subsequent writ petition but have also alleged mala fide on the part of the respondent No. 6. 21. The judgment relied upon by the appellant in Bakhtawar Singh v. Sadar Kaur and another, 1996 AIR (SC) 3488 is not applicable in the instant case and is also distinguishable as well on the facts that the Apex Court observed that the appellants/plaintiffs had failed to produce any evidence to show that the permission to withdraw the suit was given on the ground that the suit was bound to fail by reason of some formal defect and the Apex Court had further observed that the plaintiffs/appellants therein did not even produce the application that was stated to have been filed for withdrawal of the earlier suit. In the instant case, the application filed by the respondent Nos. 1 to 3 is available and has been perused by us. 22. Another judgment relied upon by the appellant passed by this Court in case, titled, Controller Weights and others vs. Maqbool Ahmed, 2005 (1) JKJ 211 [HC] is also not applicable in the instant case as in the said case, the writ petitioners were granted liberty to withdraw the writ petition with liberty to file a fresh one if the fresh cause of action accrues and in the said case the writ petitioners could not establish that after the withdrawal of the writ petition, the fresh cause of action accrued to them that necessitated them to file a fresh writ petition. 23. In view of all what has been discussed above, we do not find any illegality in the order passed by the learned Single Judge, as such, the present appeal is found to be without any merit and the same is dismissed.