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2024 DIGILAW 2060 (ALL)

Ati Ulla v. Fazar Mohammad

2024-09-12

NAND PRABHA SHUKLA

body2024
JUDGMENT : NAND PRABHA SHUKLA, J. 1. Heard Sri Rakesh Kumar Verma as well as Sameer Khan, learned counsel for the petitioners, Sri Rahul Jain, learned counsel for the respondents, Sri Pankaj Rai, learned AGA for the State and perused the record. 2. The present Writ Petition No. 2647 of 2024 under Article 227 of the Constitution of India has been filed with the following prayers: “(i) Issue an order or direction of suitable nature set aside the impugned order dated 09.08.2023 passed by learned Additional Session Judge, Court No. 1, Ghaziabad in Criminal Appeal No. 45 of 2022 (Fazar Mohammad & Another vs. Ati Ulla & Others) filed against the order dated 28.3.2022 passed by learned Additional Sub-Divisional Magistrate/Assistant Collector, Ist Class, Ghaziabad in Misc. Case/Application No. 01 of 2018 (Fazar Mohammad & Another vs. Ati Ulla & Others, under Section 340 Cr.P.C. (ii) Issue an order or direction of suitable nature set aside the entire proceedings of Misc. Case/Application No. 01 of 2018 (Fazar Mohammad & Another vs. Ati Ulla & Others) under Section 340 Cr.P.C.” 3. The Writ Petition No. 9560 of 2024 under Article 227 of the Constitution of India has been filed with the following prayers: “(i) Issue an order or direction of suitable nature set aside the impugned order dated 09.08.2023, passed by learned Additional Session Judge, Court No. 1, Ghaziabad in Criminal Revision No. 211 of 2022, Ati Ullah vs. Fazar Mohammad & Another, (so far remand back the matter), filed against the order dated 28.03.2022, passed by learned Additional Dub-Divisional Magistrate/Assistant Collector, Ist Class, Ghaziabad in Misc. Case/Application No. 01 of 2018 (Fazar Mohammad & Another vs. Ati Ulla & Others) under Section 340 Cr.P.C. (ii) Issue an order or direction of suitable nature set aside the entire proceedings of Misc. Case/Application No. 01 of 2018 (Fazar Mohammad & Another vs. Ati Ulla & Others) under Section 340 Cr.P.C.” 4. With the consent of learned counsel for the parties, the aforesaid two writ petitions are being decided by a common order. 5. The Writ Petition No. 2645 of 2024 has been preferred by Ati Ulla and Ati Mohammad against the order dated 09.08.2023 passed by learned Additional Session Judge, Court No. 1, Ghaziabad in an appeal under Section 341 Cr.P.C. preferred by Fazar Mohammad and another against the order dated 28.3.2022 passed under Section 340 Cr.P.C. 6. 5. The Writ Petition No. 2645 of 2024 has been preferred by Ati Ulla and Ati Mohammad against the order dated 09.08.2023 passed by learned Additional Session Judge, Court No. 1, Ghaziabad in an appeal under Section 341 Cr.P.C. preferred by Fazar Mohammad and another against the order dated 28.3.2022 passed under Section 340 Cr.P.C. 6. While the Writ Petition No. 9560 of 2024 has been preferred only by Ati Ullah against the order dated 09.08.2023 passed by learned Additional Session Judge, Court No. 1, Ghaziabad in a revision preferred by the petitioner Ati Ullah against the order dated 28.3.2022 passed under Section 340 Cr.P.C. 7. Aggrieved by the aforesaid remand order dated 09.08.2023, the petitioners have approached this Court under Article 227 of the Constitution of India to set aside the said order. 8. The matter, in brief, is that the respondents/defendants Fazar Mohammad and another moved an application on 09.10.2018 under Section 340 Cr.P.C. in a declaration suit under Section 229-B of Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 pending before the Court of Additional Sub-Divisional Magistrate/Assistant Collector, 1st Class, Ghaziabad. 9. In the aforesaid suit, one of the defendants Ummar Mohammad had died on 02.05.2015. 10. Despite having knowledge about the death of the defendant Ummar Mohammad, the plaintiffs (petitioners) did not move the substitution application to implead the legal heirs of Ummar Mohammad. 11. On 29.7.2015, the respondents-defendants moved an application for the abatement of the proceedings as the defendant Ummar Mohammad was already dead. 12. In the meantime, a suit for eviction bearing Suit No. 182554/2016 was filed by the legal heirs of Ummar Mohammad (dead) under Section 134 of the Uttar Pradesh Revenue Code, 2006 with a description about the death of Ummar Mohammad and the notices were issued to the petitioners (plaintiffs) who had filed the reply to the said notice on 11.3.2016 and were well informed about the death of Ummar Mohammad. Despite the aforesaid fact, the petitioners did not endeavour to substitute the legal heirs as relevant party after the death of Ummar Mohammad. 13. However, on 17.09.2018 i.e. after 3.5 years, the petitioners-plaintiffs filed the substitution application and an affidavit along with a delay condonation application under Section 5 of the Limitation Act stating that they came to know about Ummar’s death a day before though the said fact was well within their knowledge on 11.03.2016 itself. 14. 13. However, on 17.09.2018 i.e. after 3.5 years, the petitioners-plaintiffs filed the substitution application and an affidavit along with a delay condonation application under Section 5 of the Limitation Act stating that they came to know about Ummar’s death a day before though the said fact was well within their knowledge on 11.03.2016 itself. 14. The said substitution application along with an affidavit was finally allowed. Against the said order the respondent/defendant filed a Revision No. 2548 of 2018 before the Board of Revenue, Uttar Pradesh Ghaziabad. Aggrieved by the order dated 06.02.2019 passed by the Board of Revenue, the petitioner filed Writ-B No. 1354 of 2019 before the Hon’ble High Court whereby the proceedings pending before the Board of Revenue have been stayed on 21.5.2019 until further orders. 15. The main submission of learned counsel for the petitioner is that the respondent/defendant had no right to lodge a complaint rather the Court itself was empowered under Section 340 Cr.P.C. to lodge the complaint. 16. It was further argued that the dispute is already pending before the Hon’ble High Court, therefore, there was no occasion to proceed under Section 340 Cr.P.C. 17. Per contra, learned counsel for the respondents have opposed the aforesaid contentions on the ground that the learned Additional Sub-Divisional Magistrate/Assistant Collector (Class-I) Ghaziabad while deciding the application moved by respondent/defendant under Section 340 Cr.P.C. had found the force holding that the petitioner had given false statement in their substitution application and its supporting affidavit and thus directed the respondent/defendant to lodge a complaint before the Competent Court/Chief Judicial Magistrate vide its order dated 28.3.2022. 18. Recently, the Hon’ble Apex Court in James Kunjwal vs. State of Uttarakahand & Another, (2024) 8 S.C.R. 332 has laid down certain parameters in view of Section 195(1)(b) Cr.P.C. which are as follows: “What we may conclude from a perusal of the above-noticed judicial pronouncements is that: (i) The Court should be of the prima facie opinion that there exists sufficient and reasonable ground to initiate proceedings against the person who has allegedly made a false statements. (ii) Such proceedings should be initiated when doing the same is “expedient in the interests of justice to punish the delinquent” and not merely because of inaccuracy in statements that may be innocent/immaterial. (ii) Such proceedings should be initiated when doing the same is “expedient in the interests of justice to punish the delinquent” and not merely because of inaccuracy in statements that may be innocent/immaterial. (iii) There should be “deliberate falsehood on a matter of substance.” (iv) The Court should be satisfied that there is a reasonable foundation for the charge, with distinct evidence and not mere suspicion. (v) Proceedings should be initiated in exceptional circumstances, for instance, when a party has perjured themselves to beneficial orders from the Court.” 19. Considering the aforesaid facts and circumstances and in the light of the judgment passed by Hon’ble Apex Court as quoted above, the order dated 09.08.2023 is hereby set aside and it is hereby directed to the Court concerned to reconsider and decide the matter afresh in light of above after giving opportunity of hearing to both the parties, if there is no other legal impediment, expeditiously, within six weeks from the date of production of certified copy of the order. 20. Accordingly, the aforesaid two writ petitions are disposed of.