Allahabad High Court
Zahid Ali vs Niyas Ali & 3 Others on 5 September, 2014
Bench: Abhinava Upadhya
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 26
Case :- WRIT - C No. - 47594 of 2014
Petitioner :- Zahid Ali
Respondent :- Niyas Ali & 3 Others
Counsel for Petitioner :- Mohammad Hisham Qadeer,M.A. Qadeer
Hon'ble Abhinava Upadhya,J.
By means of this writ petition the petitioner has challenged the order of the revisional court passed in Civil Revision No. 120 of 2007 dated 6.8.2014 by which revision has been allowed filed by the plaintiffs-respondents.
A suit for permanent injunction being Suit No. 423 of 1993 was filed before the Civil Judge (Junior Division), Basti. In the said suit it appears that an objection was raised by the petitioner-defendant with regard to valuation and court fee. The objection of the petitioner was upheld and a direction was issued to the plaintiffs-respondents to amend the clause of the valuation in the plaint and to pay the additional court fee.
It appears that the plaintiffs thereafter moved an amendment application for amending the plaint and further tried to amend the property mentioned in the suit. The trial court rejected the said application on 16.2.2001 holding that such an amendment with regard to change of property is not permitted but granted liberty to file a fresh amendment application for amending the valuation and paying the court fee. The said order was never complied with and the suit was ultimately dismissed on 24.2.2001. Against the aforesaid order recall application was filed, which was allowed by order dated 16.10.2004. Against the aforesaid order the defendant-petitioner then filed revision being Civil Revision No. 202 of 2004 and the revisional court allowed the revision by order dated 9.3.2006 and remanded the matter back to the trial court to reconsider the recall application holding that the said suit was not dismissed in default but upon non payment of court fee which would lie in the category of Order Rule VII Rule 11 CPC. The plaintiffs' recall application after reconsideration was rejected again by order dated 9.4.2007 against which revision was filed being Civil Revision No. 120 of 2007 which has now been allowed by order dated 6.8.2014, impugned in this writ petition.
Learned counsel for the petitioner submits that till date the court fee has not been paid nor an application for amendment has been filed and the revisional court as if sitting in appeal against the earlier revision has passed the aforesaid order which is not sustainable in law.
The matter requires consideration.
Issue notice to the respondents returnable at an early date.
Learned counsel for the petitioner will take steps for service of notice upon the respondents within a week.
List after service of notice.
Till the next date of listing, the operation of the impugned order dated 6.8.2014 shall remain stayed.
Order Date :- 5.9.2014
SKM
