Allahabad High Court
Rajendra & Others vs Additional Commissioner ... on 29 August, 2012
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 18
Case :- MISC. SINGLE No. - 4667 of 2012
Petitioner :- Rajendra & Others
Respondent :- Additional Commissioner (Judicial) Lucknow Division & Anothe
Petitioner Counsel :- Shikha Sinha,Brajesh Kr.,Mayank Pandey
Respondent Counsel :- C.S.C.
Hon'ble Anil Kumar,J.
Heard Shri Brijesh Kumar Saxena, learned counsel for the petitioners, Shri Vinay Bhushan, learned Addl. Chief Standing Counsel and perused the record.
By means of the present writ petition, the petitioners have challenged the impugned orders dated 20.7.2012 (Annexure No.2) as well as 9.8.2012 (Annexure No.1) passed by opposite party no.1/Additional Commissioner (Judicial) Lucknow Division, Lucknow.
Facts in brief as submitted by learned counsel for the petitioners are that initially a suit under Section 229 B of UP. Z. A. & L. R. Act (hereinafter referred to as the Act), was filed by opposite party no.2/Smt. Sonapati, dismissed by order dated 2.7.2012 passed by Sub-Divisional Officer, Lucknow.
Aggrieved by the said order, opposite party no.2 preferred an appeal under Section 331 of Z.A. & L. R. Act before the opposite party no.1/Additional Commissioner (Judicial) Lucknow Division, Lucknow.
Learned counsel for the petitioners submits that after passing of the judgment and order dated 2.7.2012, the petitioners have filed a caveat application before the appellate authority on 3.7.2012. In spite of the said fact, on the appeal no endorsement has been made that the caveat has been filed, as such at the time of admission, the appeal was heard without intimation to the petitioners who are caveators, on 20.7.2012, the appeal was admitted and an injunction order granted in favour of the opposite party no.2.
He further submits that when the said facts came to the knowledge of the petitioners, they immediately moved an application on 30.7.2012 for recall of the order dated 20.7.2012, rejected by order dated 9.8.2012 passed by opposite party no.1. Hence, the present writ petition has been filed by the petitioners under Article 226 of the Constitution of India.
Learned counsel for the petitioners while assailing the impugned orders under challenge in the present writ petition has argued that once the petitioners/caveators have lodged a caveat petition then in view of the provisions as provided under Section 148 A of the C.P.C. it is incumbent upon the appellate authority to hear the petitioners/caveators at the time of admission of the appeal. But the same has not been done, so the said action on the part of the appellate authority is in contravention to the law as laid down by Hon'ble the Apex Court in the case of Mahadev Govind Gharge & Ors. Vs. Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka (2011) 6 Supreme Court Cases 321 and by this Court in the case of Maharaja Dharmendra Prasad Singh & another vs. Vivek Agarwal & Ors 2010 (28) LCD 323, hence the impugned orders are liable to be set aside.
After hearing learned counsel for the parties and going through the records, no doubt it is well settled proposition of law that when a caveat has been lodged in view of the statutory provision as contained in the Code of Civil Procedure it has always been incumbent upon the stamp reporter or the office who passing the appeal, shall verify the facts in regard to filing of caveat, go through the record and ascertain that whether any caveat has been filed in the matter in question and negligence on their part in not reporting the caveat, if the same is filed, then the caveators should not be put to loss due to mistake committed by the said officer of the Court in view of the Legal Maxim " Actus Curiae Neminem Gravabit" (See Maharaja Dharmendra Prasad Singh (supra)).
However, in the present case after passing of the order dated 20.7.2012, the petitioners/caveators moved an application for vacation of the injunction order and after hearing the same, the order dated 9.8.2012 has been passed by the opposite party no.1/Additional Commissioner (Judicial) Lucknow Division, Lucknow inter alia stating therein that parties are directed to maintain status quo which is equally applicable on both the parties, as such I am of the opinion that by the said order no legal injury has been caused to the petitioners at this stage.
Further, as per version/argument raised by Shri Brijesh Kumar Saxena, learned counsel for the petitioners that they are in possession of the property in dispute, thus by the impugned order at this stage neither legal injury has been caused to the petitioners nor they have suffered irreparable loss, so keeping in view the said fact, I do not find appropriate to interfere in the impugned order dated 9.8.2012 (Annexure No.1) passed by opposite party no.1/Additional Commissioner (Judicial) Lucknow Division, Lucknow.
For the foregoing reasons, writ petition is dismissed.
However, taking into account facts and circumstances of the case, a direction is issued to the opposite party no.1/Additional Commissioner (Judicial) Lucknow Division, Lucknow to decide the appeal bearing Appeal No.366/11-12 expeditiously preferably within a period of three months from the date of receiving a certified copy of this order after hearing the parties in accordance with law.
It is clarified that this Court has not adjudicated the claim of the petitioners on merit.
Order Date :- 29.8.2012/Mahesh
