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2025 DIGILAW 1394 (ALL)

Sant Harvindar Singh v. State of U. P.

2025-12-05

SIDDHARTH NANDAN

body2025
JUDGMENT : SIDDHARTH NANDAN, J. In Re: Civil Misc. Amendment Application No. Nil of 2025 1. Amendment application has been filed to correct the description of respondent no.4. 2. Learned Additional Chief Standing Counsel has no objection. 3. Counsel for the petitioner is permitted to correct the array of parties during the course of the day. 4. Accordingly, the same is allowed. Order on petition 1. Sri Ajay Shankar has filed an affidavit of service in pursuance of the order of this Court dated 28 November, 2025; in Court today; the same is taken on record. 2. As per the para 4 of the affidavit Dasti Summons have been served upon the respondent no.4. 3. Heard Sri Ajay Shankar, learned counsel for the petitioner and Sri S.N. Srivastava, learned Additional Chief Standing Counsel for the State-respondents. 4. By the consent of the parties, the present writ petition is being finally decided at the admission stage, since the question involved is only legal in nature. Facts 1. The petitioner is said to have inherited the property in pursuance of the Will dated 20.1.2015 which was executed in his favour by the erstwhile owner late Makhan Singh, with respect to his 1/4th share in Khata No.00112, Gata No.129 area (1.08 hec.) i.e. 0.271 hec. of Village Ankhey, Puranpur, Pilibhit. 2. According to the petitioner his cause of action arose on account of a Will dated 12.1.2023 which was setup by respondent no.4. He has attracted the attention of the Court to para 12 of his plaint filed in Case No.5788 of 2024 (Sant Harvindar Singh vs. Amandeep Singh and others) filed under Section 144 of the U.P. Revenue Code, 2006, (hereinafter referred as Code, 2006). For the convenience of ready reference para 2 and 4 are quoted below:- 3. It transpires that the respondent no.4 filed his objection and also subsequently he filed an application under Order VII Rule 11 of C.P.C. dated 16 th May, 2025 inter alia taking a ground that the proceedings under Section 34 of the Code, 2006 is pending and in view of the same Suit under Section 144 of the Code, 2006 is not maintainable. For convenience the relevant paragraph 3 of the objection dated 16.5.2025 is quoted below. 4. The said application under Order VII Rule 11 of C.P.C. was allowed by the impugned order dated 20.9.2025, hence the present petition. For convenience the relevant paragraph 3 of the objection dated 16.5.2025 is quoted below. 4. The said application under Order VII Rule 11 of C.P.C. was allowed by the impugned order dated 20.9.2025, hence the present petition. Issues:- (I) whether the impugned order by way of which an application under Order VII Rule 11 of C.P.C. has been allowed, is amenable to writ jurisdiction, in view of Section 207 of the Code, 2006, which provides for an appeal; (II) whether a suit under Section 144 of the Code, 2006 can be said to be barred by law on account of the pendency of the proceedings under Section 34 of the Code, 2006. Arguments-Issue No. I 5. Sri S.N. Srivastava, learned Additional Chief Standing Counsel has raised a preliminary objection that the order passed on application under Order VII Rule 11 of C.P.C. is appealable under Section 207 of the Code, 2006; and accordingly the petitioner may be relegated to avail the alternative remedy, which according to him is an efficacious remedy and in view of the facts stated in the present writ petition, the same is liable to be dismissed on the ground of alternative remedy. 6. Per contra Sri Ajay Shankar, learned counsel for the petitioner has submitted that since the authority concerned has exceeded its jurisdiction and has considered the pendency of proceedings under Section 34 of the Code, 2006 to be a bar which is in the teeth of the settled position of law and being a purely question of law; the present writ petition is maintainable. He has relied upon the judgement in the case of Qamar Abbas Vs. Additional Commissioner 2024(1) ADJ 640 MANU/UP/4161/2023. For the convenience of reference, para 9 and 10 are quoted below:- “9. The Hon'ble Supreme Court, in the case of Godrej Sara Lee Ltd. v. Excise and Taxation Officer-cum-Assessing Authority and others; 2023 SCC OnLine SC 95, has held that where the controversy is a purely legal one and it does not involve disputed questions of fact but only question of law, then it should be decided by the high Court instead of dismissing the writ petition on the ground of an alternative remedy being available. The relevant paragraphs 6 to 8 are extracted here-in-below : ''6. The relevant paragraphs 6 to 8 are extracted here-in-below : ''6. At the end of the last century, this Court in paragraph 15 of the its decision in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1 , carved out the exceptions on the existence whereof a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute. The same read as under: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; (iii) where the order or the proceedings are wholly without jurisdiction; or (iv) where the vires of an Act is challenged. 7. Not too long ago, this Court in its decision in Assistant Commissioner of State Tax v. M/s. Commercial Steel Limited, 2021 SCC OnLine SC 884, has reiterated the same principles in paragraph11. 8. That apart, we may also usefully refer to the decisions of this Court in State of Uttar Pradesh and others v. Indian Hume Pipe Co. Ltd., (1977) 2 SCC 724 and Union of India v. State of Haryana, (2000) 10 SCC 482 . What appears on a plain reading of the former decision is that whether a certain item falls within an entry in a sales tax statute, raises a pure question of law and if investigation into facts is unnecessary, the high Court could entertain a writ petition in its discretion even though the alternative remedy was not availed of; and, unless exercise of discretion is shown to be unreasonable or perverse, this Court would not interfere. In the latter decision, this Court found the issue raised by the appellant to be pristinely legal requiring determination by the high Court without putting the appellant through the mill of statutory appeals in the hierarchy. What follows from the said decisions is that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the high Court instead of dismissing the writ petition on the ground of an alternative remedy being available.'' 10. What follows from the said decisions is that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the high Court instead of dismissing the writ petition on the ground of an alternative remedy being available.'' 10. In view of above law laid down by the Hon'ble Supreme Court and also admitted to the parties that only question of law is involved in this petition, it is being entertained, instead of relegating to the alternative remedy, and this Court proceeds to decide it considering the rival contentions. 7. The perusal of the aforesaid judgement reaffirms the settled position of law that in case of violation of (i) fundamental rights (ii) violation of statutory principles or (iii) where the order or the proceedings are wholly without jurisdiction or (iv) where the vires of an Act is challenged (v) where there is a violation of principles of natural justice; and (vi) where the question is pristinely legal, it cannot be said that the writ petition should be dismissed on the ground of alternative remedy alone. 8. Learned counsel for the petitioner has further relied upon on the case of Smt. Kalawati vs. Board of Revenue 2022 (155) RD 169 to contend that ‘rule of alternate remedy’ in the context of maintainability of the writ petition under Article 226 of the Constitution of India being examined, demonstrates that the power under Article 226 of the Constitution of India to issue Writs can be exercised not only for enforcement of fundamental rights but for any other purpose as well. The High Court has the discretion not to entertain the writ petition and one of the restrictions placed on the power of the High Court is where an effective alternative remedy is available to the aggrieved persons; but the same are subject to various exceptions, as already examined herein above. He has further contended that the Rule of exhaustion of an alternative remedy has been held to be a rule of policy, convenience and discretion and existence of an alternative remedy cannot be said to be an absolute bar, in exercise of power under Article 226 of the Constitution of India. 9. He has further contended that the Rule of exhaustion of an alternative remedy has been held to be a rule of policy, convenience and discretion and existence of an alternative remedy cannot be said to be an absolute bar, in exercise of power under Article 226 of the Constitution of India. 9. Accordingly, I find that from time to time the ‘rule of alternative remedy’ has been examined by this Court as well as the Apex Court and the consistent view is that the same is only to be construed as a policy and not a complete bar to exercise powers under Article 226 of the Constitution of India. 10. In the facts of the present case in order to give a reasonable meaning to the question referred herein above, we proceed to examine the Order VII Rule 11 of the C.P.C.; and again for the convenience of reference the same is quoted herein below:- “ 11. Rejection of plaint.— The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; 1[(e) where it is not filed in duplicate;] 2[(f) where the plaintiff fails to comply with the provisions of rule 9:] 3[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]” 11. For the purposes of rejecting the plaint what is to be examined is whether the plaint discloses a cause of action or the relief claimed is under valued and in spite of the opportunity the plaintiff had failed to make good the under valuation; or the plaint is insufficiently stamped and the plaintiff has failed to supply requisite stamp-paper within the time fixed by the Court; or whether the suit appears from the statement in the plaint to be barred by any law. 12. At this stage the petitioner has attracted the attention of the Court to the impugned order wherein primarily the application under Order VII Rule 11 of the C.P.C. has been allowed on the pretext that the proceedings under Section 34 of the Code, 2006 is pending; and submits that the proceedings under section 34 being summary in nature, has no bearing on the proceedings under Section 144 of the Code, 2006; and accordingly the impugned order is in the teeth of law. He further contends that the said question is purely legal in question and there are no disputed question of facts; and such the Writ Petition under Article 226 of the Constitution of India, is maintainable. 13. Per contra the learned Additional Chief Standing Counsel has tried to justify the impugned order by stating that the rejection was not merely on the said contingency but also the authorities had come to the conclusion that no cause of action has been spelled out in the plaint. Conclusion 14. I have examined the plaint and find that the plaintiff had spelled out his cause of action categorically in the plaint, by stating that a Will dated 12.1.2023, which is allegedly in favour of a third person could not have been executed for want of title and accordingly the same was void; and furthermore that the registered Will dated 20.1.2015 which has been executed in his favour is a valid Will and consequently a cause of action for a suit of declaration of title, arises, for which proceedings under Section 144 of Code, 2006 has been initiated. Arguments-II 15. The second argument which was advanced by the learned Additional Chief Standing Counsel was relying upon the provisions of Section 207 of the Code, 2006 and the availability of the alternative remedy, to state that the present writ petition is not maintainable and there is an efficacious alternative remedy. Arguments-II 15. The second argument which was advanced by the learned Additional Chief Standing Counsel was relying upon the provisions of Section 207 of the Code, 2006 and the availability of the alternative remedy, to state that the present writ petition is not maintainable and there is an efficacious alternative remedy. Conclusion 16. From the perusal of the impugned order, I find that the authority has proceeded to hold that since the proceedings under Section 34 of the Code, 2006 has not attained finality, therefore, the application under Order VII Rule 11 of C.P.C. is bound to be allowed. I find that it is a patent error of law and it is also in conflict with the provisions of Order VII Rule 13 of C.P.C. For ready reference the Order VII Rule 13 is quoted below:- 13. Where rejection of plaint does not preclude presentation of fresh plaint.— The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. 17. A reading of Order VII Rule 11 and Order VII Rule 13 of C.P.C. conjointly, provides a procedural coherence, that in a contingency where a plaint is rejected under Order VII Rule 11 of the C.P.C., it shall not of its own course preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action that both the provisions has to be interpreted in a manner, to not make the other provisions obsolete. 18. Since the question which is to be determined is purely a legal question; and further that the reliance placed by the authority is on a decision of Board of Revenue, which is eventually the Second Appellate Authority, I do not find the availability of the remedy of appeal under Section 207 of the Code, 2006 and second appeal under Section 208 of the Code, 2006, an efficacious remedy. 19. In view of the aforesaid discussion, the preliminary objection with respect to availability of the alternative remedy, I find that the same is liable to be rejected in the facts of the present case. Issue no. II (Arguments) 20. 19. In view of the aforesaid discussion, the preliminary objection with respect to availability of the alternative remedy, I find that the same is liable to be rejected in the facts of the present case. Issue no. II (Arguments) 20. Counsel for the petitioner has taken the Court through the impugned order dated 20.9.2025, to contend that non application of mind is evident from the fact that firstly the authority has quoted the entire plaint and thereafter the objection/application under Order VII Rule 11 of C.P.C.; and eventually without any discussion on the issue, has directly concluded that the plaint does not disclose any cause of action and while allowing the application under Order VII Rule 11 of C.P.C., it had merely stated that since the proceedings under Section 34 of the Code, 2006 is pending, therefore, till the same attains finality, the present proceedings under Section 144 of the Code, 2006 is liable to be rejected. 21. Per contra learned Additional Chief Standing Counsel placing reliance on the plaint as well as the application under Order VII Rule 11 of C.P.C. has contended that the authorities had duly applied its mind, while concluding that the plaint does not disclose any cause of action. Discussion 22. A pointed query was put to the learned Additional Chief Standing Counsel that whether the conclusion which has been relied upon by the State while justifying the impugned order dated 20.9.2025, to the effect that the plaint does not disclose any cause of action; is based on any discussion or not, he could not point out any such discussion or consideration in the impugned order dated 20.9.2025. At this stage he had specifically stated that in the personal affidavit which has been filed on behalf of the respondent no.2, he has categorically taken a stand that due to an oversight, inadvertently the reliance which has been placed on the decision of Board of Revenue, was misplaced; and but for the same, he would have examined the correct position of law and in future he undertakes to be more vigilant. 23. Learned counsel for the petitioner has relied on the judgment passed by the coordinate Bench of this Court in the case of Nehru Junior High School Taryasujan Vs. 23. Learned counsel for the petitioner has relied on the judgment passed by the coordinate Bench of this Court in the case of Nehru Junior High School Taryasujan Vs. State of U.P. and others 2023 (161) RD 31 to contend that the jurisdiction under Order VII Rule 11 C.P.C. is not to be utilized as trial before the trial; while relying upon para 20 and 22 of the said judgement. For ready reference para 20 and 22 are quoted below:- “20. The exercise of jurisdiction under Order VII Rule 11 C.P.C. in respect to the suit under Section 229 - B of U.P. Z.A. & L.R. Act, this Court in the case reported in 2019(145) RD 411 Roshan Singh @ Bunti Vs.Board of Revenue and Others has held that jurisdiction under Order VII Rule 11 C.P.C. is not to be utilised as a trial before the trial. Paragraph No.6 of the judgment is relevant for perusal which is as under:- “6. This Court has perused the plaint, a copy of which is annexed as Annexure-3 to the writ petition. A perusal of paragraphs 5, 6, 7 and 8 of the plaint shows that the plaintiff has come forward seeking declaration of his rights to Khasra No.213, admeasuring 1 Bigha, 9 Biswa and 6 biswansi situate at Village Kheda, Pargana Dasna, District Hapur, (then Ghaziabad) and to hold the Will dated 06.06.1977 void. The cause of action clearly indicates that the petitioner alleges fraud played upon him by the defendants. It has been averred in paragraph-6 of the plaint that the fact that the name of the defendants had been recorded over the property in dispute, was kept back from the plaintiff until the month of May, 2006. It is claimed that the plaintiff Charan Singh, never knew it before the said date. It is claimed by the plaintiff that he is a co-sharer along with deceased, Balbeer Singh through whom the defendants claim, on the basis of a Will. It is also averred in paragraph-8 that the entire mutation proceedings, wherein the order dated 18.11.1998 has been passed in favour of the defendant, were all taken behind his back. These are pleadings which prima facie require to be examined on the basis of evidence, even if the cause of action is ultimately held to be barred by limitation. It is also averred in paragraph-8 that the entire mutation proceedings, wherein the order dated 18.11.1998 has been passed in favour of the defendant, were all taken behind his back. These are pleadings which prima facie require to be examined on the basis of evidence, even if the cause of action is ultimately held to be barred by limitation. It is not a case where on a reading of the plaint, the cause of action is ex facie barred by limitation. The law about exercise of jurisdiction under Order VII Rule 11 CPC is settled beyond the slightest doubt. It is that, that allegations in the plaint alone are to be seen, in order to determine whether the plaint is to be rejected, on any of the grounds mentioned in Order VII Rule 11 CPC. The defence put forward by the defendant or the evidence is not at all to be considered. The jurisdiction under Order VII Rule 11 CPC is not to be utilized as a trial before the trial. 22. The aforementioned paragraph nos. 3,4,5 and 6 of the plaint discloses the cause of action to the plaintiff to file suit for declaration of her right under Section 144 of U.P. Revenue Code, 2006 as such rejection of plaint or dismissal of suit under Section 144 of U.P. Revenue Code, 2006 at the very initial stage will be illegal.” 24. Learned counsel for the petitioner has further contended that in order to ascertain the intent of the legislature, no provision can be interpreted in isolation and the same has to be read as a whole. He has pointed out that Section 37 of the Code, 2006 is not attracted once a report under Section 33 or Section 34 has been made. He has also contended that once such a report has been made, the bar under Section 37 of the Code, 2006 cannot be said to be attracted and the same is also not contingent upon the conclusion of the said proceedings. For ready reference Section 37 of the Code, 2006 is quoted below:- “37. Bar Against Certain Suits: No suit or other proceeding shall lie in any revenue court at the instance of any person obtaining possession of any land by succession or transfer, until he has made a report under section 33 or section 34, as the case may be.’’ 25. Bar Against Certain Suits: No suit or other proceeding shall lie in any revenue court at the instance of any person obtaining possession of any land by succession or transfer, until he has made a report under section 33 or section 34, as the case may be.’’ 25. Learned counsel for the petitioner has further relied upon Section 39 of the Code, 2006 to contend that no order passed by the Revenue Inspector in mutation proceedings shall debar any person from establishing his right to the land by means of a suit under Section 144 of the Code, 2006. Conclusion 26. I find substance in the arguments that once an incumbent has reported the factum of succession or acquisition of his right as contemplated under Section 33 read with Section 34 of the Code, 2006, the bar as contemplated under Section 37 of the Code, 2006 cannot be said to be attracted or that the conclusion of the said proceedings can act as a bar. It may also be noted at this juncture that even if an order under Section 34 of the Code, 2006 goes against the incumbent, the same may also not have any impact on the proceedings under Section 144 of the Code, 2006, as the proceedings under section 34 of the Code, 2006 are summary in nature and does not give title to the incumbent whose name is mutated in the said proceedings. The said proceedings are merely for the purpose of revenue and does not decide title. 27. Once the aforesaid provisions are interpreted harmoniously, there is an inescapable conclusion that proceedings under Section 34 of the Code, 2006 and Section 144 of the Code, 2006 are distinct proceedings and does not impact each other. However, in the scale, Section 144 of the Code, 2006 carries weight since it eventually adjudicates on the title and the same can be done only after framing issues and leading evidence, while Section 34 are summary in nature and can be undertaken, only based on Memo of Evidence. 28. In the aforesaid framework, it can only be construed that once the proceedings under Section 144 of the Code, 2006 is initiated, if otherwise it does not attract any legal bar, the same has to be brought its logical end after framing issues and leading evidence. 29. 28. In the aforesaid framework, it can only be construed that once the proceedings under Section 144 of the Code, 2006 is initiated, if otherwise it does not attract any legal bar, the same has to be brought its logical end after framing issues and leading evidence. 29. I am also in respectful agreement with the judgement of the coordinate Bench of this Court, in the case of Nehru Junior High School Taryasujan (Supra) which hold that jurisdiction under Order VII Rule 11 C.P.C. is not to be utilized as trial before the trial and if plaint discloses cause of action, the same cannot be rejected as such under Order VII Rule 11 C.P.C. 30. In view of the aforesaid facts and circumstances, issue no. 2 is decided in favour of the petitioner and consequently it is held that the pendency of proceedings under Section 34 of the Code, 2006 cannot be construed to be a bar to the proceedings under Section 144 of the Code, 2006. 31. Accordingly, in view of the affidavit of compliance which has been filed today in Court on behalf of respondent no.2 and the observations made herein above, the parties have consented that illegality which has been committed by the impugned order dated 20.9.2025 can be cured, in case the matter is remanded back to the respondent no.2 for fresh adjudication on the proceedings initiated by the petitioner under Section 144 of the Code, 2006, keeping in view the observation made herein above. Relief/Directions 32. In view of above, the impugned order dated 20.9.2025 is set aside and the matter is remanded back to the S.D.M. Tehsil Puranpur, District Pilibhit with the following directions:- (i) he may decide the application dated 16.5.2025 under Order VII Rule 11 C.P.C. within a period of two months from the date of production of certified copy of this order is filed before him after giving due opportunity to the affected parties; (ii) In the eventuality the application under Order VII Rule 11 C.P.C. is rejected, he shall proceed to conclude the proceedings of Case No.5788 of 2024 (Sant Harvindar Singh vs. Amandeep Singh and others) filed under Section 144 of the U.P. Revenue Code, 2006, within a period as contemplated para 458 of U.P. Revenue Court Manual. 33. With the aforesaid observations the writ petition is allowed, with no order as to costs. 33. With the aforesaid observations the writ petition is allowed, with no order as to costs. Exemption Application In view of the order passed today, the application is disposed of. The presence of respondent no.2 is exempted.