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Allahabad High Court · body

2023 DIGILAW 1126 (ALL)

Shiv Nath v. State of U. P.

2023-04-24

KSHITIJ SHAILENDRA

body2023
JUDGMENT Kshitij Shailendra, J. Ref: Civil Misc. Substitution Application No. 5 of 2018 Heard learned counsel for the parties. 2. This application has been filed seeking permission to bring on record heirs/legal representatives of respondent No.4, Rama, who has died pending litigation. 3. Considering the provisions of Order XXII of Code of Civil Procedure read with Chapter VIII Rule 38-A of High Court Rules, 1952, the application is allowed. 4. Abatement, if any, is set aside. 5. Office is directed to incorporate necessary substitution in the array of the parties. Ref: Civil Misc. Delay Condonation Application No. 6 of 2018 6. Heard learned counsel for the parties. 7. Cause for delay in filing the substitution application/recall application/restoration application, has been explained to the satisfaction of the Court. 8. Taking a liberal view of the matter and in the interest of justice, the delay is condoned. 9. The application seeking condonation of delay is allowed. Ref: Civil Misc. Substitution Application No. 7 of 2018 10. Heard learned counsel for the parties. 11. This application has been filed seeking permission to bring on record heirs/legal representatives of respondent No. 9 Shwami Nath, who has died pending litigation. 12. Considering the provisions of Order XXII of Code of Civil Procedure read with Chapter VIII Rule 38-A of High Court Rules, 1952, the application is allowed. 13. Abatement, if any, is set aside. 14. Office is directed to incorporate necessary substitution in the array of the parties. Ref: Civil Misc. Delay Condonation Application No. 8 of 2018 15. Heard learned counsel for the parties. 16. Cause for delay in filing the substitution application/recall application/restoration application, has been explained to the satisfaction of the Court. 17. Taking a liberal view of the matter and in the interest of justice, the delay is condoned. 18. The application seeking condonation of delay is allowed. Ref: Civil Misc. Substitution Application No. 9 of 2018 19. Heard learned counsel for the parties. 20. This application has been filed seeking permission to bring on record heirs/legal representatives of respondent No. 15, Mizzu, who has died pending litigation. 21. Considering the provisions of Order XXII of Code of Civil Procedure read with Chapter VIII Rule 38-A of High Court Rules, 1952, the application is allowed. 22. Abatement, if any, is set aside. 23. Office is directed to incorporate necessary substitution in the array of the parties. Ref: Civil Misc. 21. Considering the provisions of Order XXII of Code of Civil Procedure read with Chapter VIII Rule 38-A of High Court Rules, 1952, the application is allowed. 22. Abatement, if any, is set aside. 23. Office is directed to incorporate necessary substitution in the array of the parties. Ref: Civil Misc. Delay Condonation Application No. 10 of 2018 24. Heard learned counsel for the parties. 25. Cause for delay in filing the substitution application/recall application/restoration application, has been explained to the satisfaction of the Court. 26. Taking a liberal view of the matter and in the interest of justice, the delay is condoned. 27. The application seeking condonation of delay is allowed. Ref: Civil Misc. Substitution Application No. 11 of 2018 28. Heard learned counsel for the parties. 29. This application has been filed seeking permission to bring on record heirs/legal representatives of respondent No.8, Ramdhani, who has died pending litigation. 30. Considering the provisions of Order XXII of Code of Civil Procedure read with Chapter VIII Rule 38-A of High Court Rules, 1952, the application is allowed. 31. Abatement, if any, is set aside. 32. Office is directed to incorporate necessary substitution in the array of the parties. Ref: Civil Misc. Delay Condonation Application No. 12 of 2018 33. Heard learned counsel for the parties. 34. Cause for delay in filing the substitution application/recall application/restoration application, has been explained to the satisfaction of the Court. 35. Taking a liberal view of the matter and in the interest of justice, the delay is condoned. 36. The application seeking condonation of delay is allowed. Ref: Civil Misc. Substitution Application No. 13 of 2018 37. Heard learned counsel for the parties. 38. This application has been filed seeking permission to bring on record heirs/legal representatives of respondent No. 5, Jai Narayan, who has died pending litigation. 39. Considering the provisions of Order XXII of Code of Civil Procedure read with Chapter VIII Rule 38-A of High Court Rules, 1952, the application is allowed. 40. Abatement, if any, is set aside. 41. Office is directed to incorporate necessary substitution in the array of the parties. Ref: Civil Misc. Substitution Application No. 15 of 2018 42. Heard learned counsel for the parties. 43. This application has been filed seeking permission to bring on record heirs/legal representatives of respondent No. 16 Bansraj, who has died pending litigation. 44. 41. Office is directed to incorporate necessary substitution in the array of the parties. Ref: Civil Misc. Substitution Application No. 15 of 2018 42. Heard learned counsel for the parties. 43. This application has been filed seeking permission to bring on record heirs/legal representatives of respondent No. 16 Bansraj, who has died pending litigation. 44. Considering the provisions of Order XXII of Code of Civil Procedure read with Chapter VIII Rule 38-A of High Court Rules, 1952, the application is allowed. 45. Abatement, if any, is set aside. 46. Office is directed to incorporate necessary substitution in the array of the parties. Ref: Civil Misc. Delay Condonation Application No. 24 of 2023 47. Heard learned counsel for the parties. 48. Cause for delay in filing the substitution application/recall application/restoration application, has been explained to the satisfaction of the Court. 49. Taking a liberal view of the matter and in the interest of justice, the delay is condoned. 50. The application seeking condonation of delay is allowed. Ref: Civil Misc. Substitution Application No. 25 of 2023 51. Heard learned counsel for the parties. 52. This application has been filed seeking permission to bring on record heirs/legal representatives of sole petitioner, Shiv Nath, who has died pending litigation. 53. Considering the provisions of Order XXII of Code of Civil Procedure read with Chapter VIII Rule 38-A of High Court Rules, 1952, the application is allowed. 54. Abatement, if any, is set aside. 55. Office is directed to incorporate necessary substitution in the array of the parties. Order on Writ Petition 56. Today, by the separate orders passed on various substitution applications, they have been allowed, direction has already been issued to the office to incorporate substitution in the array of the parties. 57. Since, this writ petition is being finally decided today itself, the office shall not issue certified copy of this order to either of the parties unless all the substitutions are carried out in the array of the parties. 58. Heard Shri Ram Jeet Mishra, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Shri Man Mohan Singh, learned counsel appearing for the respondent No. 14. 59. A direction for preparation of final decree was issued under the order dated 18.06.2004 in the proceedings under section 176 of the U.P. Zamindari Abolition and Land Reforms Act. 58. Heard Shri Ram Jeet Mishra, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Shri Man Mohan Singh, learned counsel appearing for the respondent No. 14. 59. A direction for preparation of final decree was issued under the order dated 18.06.2004 in the proceedings under section 176 of the U.P. Zamindari Abolition and Land Reforms Act. The respective shares of the parties were declared on the basis of admissions made by the parties. The order was not detailed one. 60. Immediately after the said order was passed, some of the defendants filed a review application under Order XLVII Rule 1 of the Code of Civil Procedure mentioning various admissions made by the parties and the facts admitted to all the parties including the fact that whatever portion has been auctioned, the same shall be adjusted in the share of the parties concerned from whose share the property has been auctioned. 61. In sum and substance, it was contended that preliminary decree has been directed to be prepared and, there are errors apparent on the face of the record, which would substantially affect the rights of the parties. 62. Some of the defendants as well as the petitioner filed objections against the review application and the Additional Sub Divisional Officer by order dated 30.09.2005 allowed the review application recording a fact that in case, the order is not corrected as per the factual position, it would defeat the purpose of law. 63. The aforesaid order was assailed by means of revision filed by the petitioner, which has been dismissed by the Additional Commissioner-I, Varanasi by order dated 20.08.2016. 64. Learned counsel for the petitioner submits that no power of review vested in the Sub Divisional Officer and, therefore, the order impugned is illegal. 65. Learned counsel for respondent No. 14, however, argues that no prejudice will be caused to the petitioner by the impugned order, inasmuch as by allowing review application, all the parties would be heard by the first court. 66. I have heard the learned counsel for the parties and perused the record. 67. 65. Learned counsel for respondent No. 14, however, argues that no prejudice will be caused to the petitioner by the impugned order, inasmuch as by allowing review application, all the parties would be heard by the first court. 66. I have heard the learned counsel for the parties and perused the record. 67. Though, it is true that power of review is a creation of statute and unless the statute contains a provision for review, the court/authority concerned has no jurisdiction to review the order passed earlier, however I find that section 341 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 clearly provides that the provisions of the Court Fees Act, Code of Civil Procedure and Limitation Act shall apply to the proceedings under this Act. 68. There may be a quarrel regarding inclusion of provisions for review as covered by Order XLVII Rule 1 of C.P.C. by virtue of section 341 of U.P. Z.A. and L.R. Act, considering the peculiar facts and circumstances of the case where the proceedings of this writ petition arise out of a suit for division of holdings, where status of all contesting parties concerned becomes that of a plaintiff and even the decree is not passed in a single stroke but the rights of the parties are scrutinized at different stages of proceedings; that is to say that a preliminary decree is passed initially and, thereafter objections raised are invited from both the sides and then final Kurras are prepared and implemented on the spot pursuant to final decree drawn, I find that in case the initial order of preparation of final decree was cryptic and not only admissions made by the parties, but also various other aspects were not given any consideration despite bringing the same on record, in case the Sub Divisional Officer has again revived the first stage immediately after the first order, no prejudice would be caused to any of the parties. It is the case where error was apparent on the face of record and, moreover, learned counsel for the both sides have argued that various sale deeds have been executed during the pendency of the writ petition, which would affect the preparation of Kurras and even the preliminary and final decrees, which are yet to be drawn in the present case. 69. 69. Having heard the learned counsel for the parties, I am of the opinion that since many parties have died, their shares have devolved by succession upon their heirs. Further certain sale deeds have been executed and there is involvement of the auction proceedings in relation to some of the gatas concerned. Therefore, in case orders impugned are quashed and the preliminary decree drawn on 18.06.2004 is upheld it would lead to a circumstance where none of the parties would remain anywhere, that is to say that Kurras prepared would be contrary to the factual and legal position and that would give rise to multiplicity of the proceedings. 70. In view of above, since proceedings of partition are at initial stage pursuant to the orders impugned, which were stayed by this Court in the present writ petition, I am not inclined to quash the same and irrespective of the technicality or the aspects of the maintainability of the review application, this writ petition is being disposed of keeping in view the totality of facts and circumstances of the case and the visualizing the ultimate result of the proceedings. 71. In view of the above, the writ petition fails and is hereby dismissed. 72. The proceedings of partition suit are revived pursuant to the order impugned dated 30.09.2005. 73. The plaintiff is permitted to incorporate amendments in the plaint based upon the developments that have taken place during the pendency of the writ petition or otherwise. 74. The defendants or their substituted heirs shall be permitted to file objections in the proceedings within a period of three months. 75. The parties shall be allowed to lead evidence in support of their respective claims and defences. 76. The entire proceedings of the suit shall be concluded positively within a period of one year from the date a certified copy of this order is filed by any of the parties before the court concerned.