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2023 DIGILAW 284 (ALL)

Ashok Kumar Singh v. State of U. P.

2023-01-28

CHANDRA KUMAR RAI

body2023
JUDGMENT : 1. Heard Mr. A.P. Tewari, Counsel for the petitioner, Mr. S.P. Yadav and Mr. Durgesh Chandra Tiwari, Counsel for the contesting respondent Nos.13, 14 and 15 and learned Standing Counsel for respondent Nos.1 to 3. 2. Brief facts of the case are that one Santu was recorded tenure holder of the plot in dispute and after death of Santu dispute arose and Smt. Dubeya widow of late Santu filed a suit under Section 229-B of U.P.Z.A.& L R. Act in respect to the plot mentioned in list 'A' of the plaint. The aforesaid suit was filed on 14.11.1990 bearing Suit No.180 of 1990. During pendency of the suit, one application has been filed by plaintiff Smt. Dubeya on 06.08.2005 for exclusion of name of defendant No. 1 to 5 and 9 to 25 from the array of the parties of defendant on the ground that their names have already been expunged from the revenue record. It was also prayed that Ramesh, Rakesh and Suresh sons of Ram Dhuni be added as defendant No.1, 2 and 3 in the array of the defendants of the suit. It is also prayed that in place of defendant No.4, the name of Pushpa Devi be added. Sub-Divisional Officer vide order dated 06.08.2005 allowed the application filed by plaintiff-Smt. Dubeya. Another application was filed on 19.07.2005 by plaintiff Smt. Dubeya for transposing Chandra Sen Singh as plaintiff No.2 in the array of the plaintiff. The aforementioned application was also allowed by Sub-Divisional-Officer by order dated 19.07.2005. The plaint filed by the plaintiff was accordingly amended. During pendency of the suit under Section 229-B of the U.P.Z.A. and L.R. Act parties to the suit have entered into compromise, which was dully identified by their Advocates in presence of the Court and the Sub-Divisional-Officer vide order dated 26.08.2005 decided the plaintiff-suit filed by Smt. Dubeya and Chandra Sen Singh in terms of the compromise vide judgment and decree dated 26.08.2005. Respondent No.7 (Dhunmun) and Respondent No.8 (Paras Nath Rai) moved a recall application dated 26.11.2005 and 23.09.2005 for recalling the judgment and decree dated 06.08.2005/26.08.2005. Petitioner filed one transfer application before the Commissioner Gorakhpur Division, Gorakhpur dated 16.12.2005 in which comments were invited and record was also summoned. Respondent No.7 (Dhunmun) and Respondent No.8 (Paras Nath Rai) moved a recall application dated 26.11.2005 and 23.09.2005 for recalling the judgment and decree dated 06.08.2005/26.08.2005. Petitioner filed one transfer application before the Commissioner Gorakhpur Division, Gorakhpur dated 16.12.2005 in which comments were invited and record was also summoned. Plaintiff No.2 Chandra Sen Singh filed an application on 17.12.2005 before trial court (Sub Divisional Officer) for summoning the Paras Nath Rai who filed recall application against the judgment and decree of the trial court. The Sub-Divisional Officer vide order dated 20.12.2005 directed that Paras Nath Rai be appeared in person as well as alleged Advocate Prahlad Singh, but on the date fixed before the Sub-Divisional Officer neither Paras Nath Rai, nor alleged Advocate, Prahalad Singh appeared. Sub-Divisional Officer without considering the aforesaid aspect of the case passed ex-parte order dated 22.12.2005 setting aside the order dated 26.08.2005. Against the order dated 22.12.2005 passed by Sub Divisional Officer, petitioner filed revision before the Board of Revenue, which was entertained and interim order was also granted on 09.01.2007. Board of Revenue has also called for certain enquiry from the Collector Gorakhpur vide order dated 12.01.2006 accordingly District Magistrate, Gorakhpur constituted three members committee to conduct inquiry and submit the report. A report dated 22.04.2006 has been submitted by three members committee to the Board of Revenue. The applicant of the recall application, namely Dhuman Prasad filed an affidavit before the Board of Revenue stating that he has not filed any recall application before the Sub-Divisional Officer against the judgment and decree dated 26.08.2005. The Board of Revenue has dismissed the revision filed by the petitioner vide order dated 24.07.2014. Hence this writ petition. 3. This Court while entertaining the writ petition has passed the following interim order dated 25.08.2014 : "Heard Sri A.P. Tewari, learned counsel for the petitioner, learned Standing Counsel for the State respondents, Sri H.R. Mishra, learned Senior Counsel assisted by Sri Abhishek Misra, learned counsel for the respondents no. 4, 5 and 6, Sri Surya Pratap Yadav, learned counsel for the respondent no. 14 and Sri S.M. Shukla, learned counsel appearing for respondent no. 16. While assailing the impugned orders, learned counsel for the petitioner vehemently contended that the order dated 22.12.2005 passed by the Sub-Divisonal Officer is an exparte order. 4, 5 and 6, Sri Surya Pratap Yadav, learned counsel for the respondent no. 14 and Sri S.M. Shukla, learned counsel appearing for respondent no. 16. While assailing the impugned orders, learned counsel for the petitioner vehemently contended that the order dated 22.12.2005 passed by the Sub-Divisonal Officer is an exparte order. Further the same has been passed ignoring the transfer application seeking transfer of the case as well as an application of the petitioner praying the court the appearance of Sri Paras Nath Rai as Sri Rai on whose behalf recall application has been filed, has not been filed any application and application has been filed by an impostor. Further there was condolence on the date of order even then the impugned order has been passed without giving any opportunity to file objection to the recall application. From the perusal of both the orders, there appears to be substance in the submissions of learned counsel for the petitioner as while passing the impugned order there is no mention of the objection of the petitioner. Refuting the submissions of learned counsel for the petitioner, Sri Mishra, learned Senior Counsel appearing for the respondents submits that Dubiya had no heirs and the petitioner is an impostor, the same allegation is of the petitioner against the respondents which fact has been noted by the learned Member Board of Revenue. In the submissions of learned counsel for the respondents, the writ petition deserves to be dismissed as substantial justice has been done by setting aside the exparte decree. Matter requires scrutiny. Issue notice. Notices on behalf of respondents no. 1 to 3 have been accepted by the office of learned Chief Standing Counsel whereas Sri Abhishek Mishra has filed vakalatnama on behalf of respondent no. 4, 5 and 6. Sri Surya Pratap Yadav has filed caveat on behalf of respondent no. 14. Sri S.M. Shukla has accepted notice for respondent no. 16. Therefore notice need not be served again to the aforesaid respondents. Issue notice to remaining respondents through registered post returnable at an early date. Steps be taken within two weeks. 4, 5 and 6. Sri Surya Pratap Yadav has filed caveat on behalf of respondent no. 14. Sri S.M. Shukla has accepted notice for respondent no. 16. Therefore notice need not be served again to the aforesaid respondents. Issue notice to remaining respondents through registered post returnable at an early date. Steps be taken within two weeks. As an interim measure without prejudice to the right and contention of the parties and considering the submissions of learned counsel for the parties, subject to further order passed by this Court, the parties are directed to maintain status quo with regard to nature and possession over the land in dispute, further not to create any third party right and change the nature of the land. It is further provided that in case, any alienation is made during the pendency of the writ petition by any of the party that will be treated to be void abinitio." 4. In pursuance of the interim order dated 25.08.2014, respondent No.16 has put in appearance and filed his counter affidavit. 5. Respondent No.13, 14 and 15 have also filed their counter affidavit along with the stay vacation application. 6. Petitioner has filed rejoinder affidavit to the counter affidavit filed by the contesting respondents. 7. Counsel for the petitioner submitted that suit under Section 229 B of U.P. Z.A. & L. R. Act filed by the plaintiff Smt. Dubeya and Chandra Sen Singh has been decreed on the basis of compromise entered into between the parties. He further submitted that recall application against the judgment and decree of the trial court alleged to be filed by Dhunmun Prasad and Paras Nath Rai were not maintainable. He further submitted that Dhunmun Prasad himself filed an affidavit dated 10.08.2006 before Board of Revenue stating that he has not filed any recall application. He further submitted that during the pendency of the transfer application filed by petitioner for transferring his case from the Court of Sub-Divisional Officer to another Court was pending but the impugned order dated 22.12.2005 has been passed in ex-parte manner without service of notice upon petitioners setting aside the judgment and decree dated 26.08.2005. He further submitted that during the pendency of the transfer application filed by petitioner for transferring his case from the Court of Sub-Divisional Officer to another Court was pending but the impugned order dated 22.12.2005 has been passed in ex-parte manner without service of notice upon petitioners setting aside the judgment and decree dated 26.08.2005. He further submitted that neither State Government nor Nagar Nigam had filed any application for recalling the judgment and decree dated 26.08.2005 passed on the basis of compromise between the parties, as such the stranger has no right to file any application for recalling the judgment and decree passed in accordance with law. He further submitted that Board of Revenue has also failed to exercise their jurisdiction in spite of the report as well as the affidavit filed by Dhunmun Prasad before Board of Revenue. He next submitted that Dhunmun Prasad has filed his affidavit stating that he has not filed any recall before the courts below for recalling the judgment and decree dated 26.8.2005 as such there was no occasion to set aside the judgment and decree dated 26.08.2005 passed by trial Court on the basis of compromise. 8. Counsel for the petitioner has placed the judgment reported in 2020 (146) RD 1999 Ram Awadh Singh Vs. Additional Commissioner Azamgarh and others in which scope of restoration application against the compromise decree has been discussed. 9. On the other hand, Mr. S.P. Yadav and Mr. Durgesh Chandra Tiwari, Counsel appearing for the respondent Nos.13, 14 and 15 submitted that order passed on the basis of compromise has been rightly set aside by the Sub-Divisional Officer and petitioner has afforded opportunity. He further submitted that illegality has been committed while passing the order dated 26.08.2005 deciding the suit under Section 229-B of U.P.Z.A.&L.R. Act on the basis of compromise. He further submitted the fraud has been played by the petitioner as such petitioner is not entitled to any relief in the matter. 10. He placed reliance upon the judgment reported in the following cases : 1. A.I.R. 2003 SC 2186 S.D.S. Shipping Pvt Ltd. Appellant vs. Jay Container Services Co. Pvt. Ltd. and others Respondents. 2. A.I.R. 2004 SC 3224 State of Punjab and others Appellants. Vs. Savinderjit Kaur Respondent. 3. 1982 R.D. 324 : 1982 All WC 447 Budhlal and another petitioners vs. Deputy Director of Consolidation, Gorakhpur and others- Respondents 4. A.I.R. 2003 SC 2186 S.D.S. Shipping Pvt Ltd. Appellant vs. Jay Container Services Co. Pvt. Ltd. and others Respondents. 2. A.I.R. 2004 SC 3224 State of Punjab and others Appellants. Vs. Savinderjit Kaur Respondent. 3. 1982 R.D. 324 : 1982 All WC 447 Budhlal and another petitioners vs. Deputy Director of Consolidation, Gorakhpur and others- Respondents 4. 2017 (5) SCC 496 Dnyandeo Sabaji Naik and another Petitioners vs. Mrs. Pradnya Prakash Khadekr and others Respondents. 11. I have considered the arguments advanced by the counsel for the parties and perused the record. 12. There is no dispute about the fact that suit filed by plaintiff Smt. Dubeya and Chandra Sen Singh has been decided on the basis of compromise entered into between the plaintiff and defendant after necessary verification before the Court. Against the judgment and decree passed on the basis of the compromise dated 26.08.2005 parties to proceeding have not filed any application rather Dhunmun Prasad and Paras Nath Rai have filed applications and order dated 26.08.2005 has been recalled. Petitioner challenged the order dated 26.08.2005 through revision before the Board of Revenue but the same has been dismissed. 13. Since the suit No.116 of 1991 filed by Smt. Dubeya and Chandra Sen Singh impleading defendants in the suit has been decreed on the basis of compromise between the parties hence the stranger to the proceeding has no right to file recall application. The impugned order dated 22.12.2005 passed by the Sub-Divisional Officer recalling the order dated 26.08.2005 at the instance of stranger to the proceeding is abuse of process of law. 14. Case law Ram Awadh Singh (Supra) cited by learned Counsel for the petitioner is relevant. Paragraph No.15 of the judgment rendered in Ram Awadh Singh (Supra) is relevant which is as follows:- “….15. Horil thus holds that in case a compromise decree has been made by a revenue court, an aggrieved party can maintain an independent suit before a regular civil court challenging that decree on the ground of fraud or other like grounds. Paragraph No.15 of the judgment rendered in Ram Awadh Singh (Supra) is relevant which is as follows:- “….15. Horil thus holds that in case a compromise decree has been made by a revenue court, an aggrieved party can maintain an independent suit before a regular civil court challenging that decree on the ground of fraud or other like grounds. While a reading of Horil to this extent may ostensibly appear to be discordant with the views expressed in R. Rajanna and Kishun, it is manifest that the remedy so evolved was principally guided and necessitated by the conclusion that revenue courts were neither equipped nor competent to effectively adjudicate upon allegations of fraud or to decide questions whether a compromise was in fact made the basis of a decree by way of misrepresentation or fraudulent action. In order to overcome such a situation where revenue courts were found to be ill equipped, the Supreme Court in Horil proceeded to recognize the right of an aggrieved party to challenge a compromise decree as rendered by such courts by way of a suit filed before the civil courts. In light of the above, it is manifest that the first and second respondents clearly lacked the jurisdiction and authority to try the restoration applications which sought to recall decrees made inter partes on the basis of a compromise. As a necessary corollary it must also be held that the said respondents could not have taken recourse or resorted to Section 151 of the Civil Procedure Code to entertain the applications as made by the respondents. In light of the aforesaid conclusions, this Court finds itself unable to sustain the orders impugned.” 15. The important aspect of the case is that applicant of the restoration proceeding (Dhunmun Prasad and Partas Nath Rai) have not filed any counter affidavit before this court rather respondent Nos.13, 14, 15 and 16 have filed counter affidavit who have not filed any recall application before the trial court for recalling the order dated 26.08.2005. 16. There is another aspect of the fact that Dhumun Prasad has filed an affidavit before the Board of Revenue stating that he has not filed any recall application before trial court against the order dated 26.08.2005. 17. 16. There is another aspect of the fact that Dhumun Prasad has filed an affidavit before the Board of Revenue stating that he has not filed any recall application before trial court against the order dated 26.08.2005. 17. Even the impugned order dated 22.12.2005 has been passed by the Sub Divisional Officer, Gorakhpur, in arbitrary manner and without affording opportunity of the hearing to the plaintiff of the suit. 18. Case law cited by learned Counsel for respondents are not applicable in the facts and circumstances of the case. 19. Considering the facts and circumstances of the case as well as the ratio of law laid down in Ram Awadh Singh (Supra) the impugned order dated 22.12.2005 passed by Sub Divisional Officer, order dated 24.07.2014 passed by the Board of Revenue are liable to be set aside and are hereby set aside. The writ petition stands allowed. 20. The judgment and decree dated 26.08.2005 passed in suit under Section 229-B of U.P.Z.A. & L. R. act on the basis of compromise is hereby affirmed. 21. No order as to costs.