Allahabad High Court
Rameshwar Dayal vs Jumma & Others on 15 December, 2015
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 10
Civil Misc. Recall Application No. 358586 of 2010
In
Case :- SECOND APPEAL No. - 67 of 2000
Appellant :- Rameshwar Dayal
Respondent :- Jumma & Others
Counsel for Appellant :- Madhur Prakash,Anil Kumar Aditya,Satish Dwivedi
Counsel for Respondent :- Bharat Singh,R.K. Mishra
Hon'ble Arun Tandon,J.
Heard Sri Bharat Singh, learned counsel for the applicant-respondent and Sri Anil Kumar Aditya, learned counsel respondent-appellant.
This second appeal was abated under an order of this Court dated 25th November, 2009 because the Court was informed that notification under Section 4 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act, 1953) had been issued and as a consequence to the provisions of Section 4 (2) of Act, proceedings shall be abated.
An application for recall of the said order has been filed on behalf of the plaintiff respondent in the present appeal on the ground that on the date the order of abatement was made by this Court notification under Section 52 of the Act, 1953 for close of the consolidation operations, had already been issued. Therefore, the order abating the proceedings is not justified. Reference is made to the judgment of this Court in the case of Ram Charittar Singh vs. Deputy Director of Consolidation, Azamgarh & Others reported in 1992 RD 100 for the proposition that there is no automatic abatement of the proceedings because of notification under Section 4 (2) and an order in that regard has necessarily to be made after affording opportunity of hearing to the parties concerned by the concerned Court.
Learned counsel for the respondent-appellant on the contrary points out that the proceedings giving rise to the present appeal had to be abated in view of notification under Section 4 (2) of the Act, 1953 and the consequences shall follow therefrom, as provided under Section 5 of the Act, 1953, even if such an order has not been made in that regard. The Court on information of the issuance of the notification under Section 4 (2) can pass such an order at any stage. Reference in that regard is made to the judgment of this Court in the case of Atru vs. Gopal & Another reported in 1987 R.D. 62, wherein it has been held that even if the appeal had been decided in ignorance of the notification under Section 4 (2) of Act, 1953, such an order deciding the appeal has to be recalled and the appeal has to be abated.
Learned counsel for the applicant-respondent then contended before me that in view of notification under Section 52 of the Act, 1953, there cannot be an order abating the appeal now.
I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present second appeal.
From a simple reading of Section 4 (2) read with Section 5 of Act, 1953, it is apparently clear that in respect of the land covered by the notifications under Sections 4 (2) read with Section 5 (2) (a) of Act, 1953, every proceedings for the correction of the records and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which the proceedings can or ought to be taken, pending before any court or authority whether of the first instance or of appeal, reference or revision shall, on an order being passed in that behalf by the court or the authority before whom such suit or proceeding is pending, stand abated. The provision of Section 5 (2) (a) of Act, 1953 admit of no exception, only an order has been passed by a competent court or authority for abatement of the proceedings in respect of suit or other proceedings covered within the meaning of sub-Section 2 of Section-5 of Act, 1953. The Court or the authority has no other discretion but to pass an order of abatement on a notification being issued under Section 4 (2) of Act, 1953.
Learned counsel for the applicant-respondent may be correct in submitting that there is no automatic abatement but at the same time there is no option left with the competent Court to proceed any further in the suits and other proceedings which are covered by sub-section (2) of Section 5 of Act, 1953. In that sense, an order of abatement, in my opinion, is a mere formality.
This Court may now examine the effect of notification issued under Section 52 of Act, 1953 for closing the consolidation operations.
From sub-section (2) of Section 52 of Act, 1953, it is apparent that notwithstanding anything contained in sub-section (1), on close of consolidation operations under Section 52 of Act, 1953, proceedings before the authorities as may be prescribed and the consolidation operations for the purpose be deemed to have not been closed, meaning thereby that the proceedings shall continue, as they were pending on the date of issuance of notification under Section 52 of Act, 1953 irrespective of the close of the consolidation operations.
In my opinion, the legal consequences on joint reading of Section 4 (2) and Section 5 (2) Act, 1953 is that the proceedings before any other Court, would abate and rights etc. are to be decided through proceedings before the consolidation authorities. Any pending proceeding on the date of issuance of notification under Section 52 of Act, 1953 shall continue as such as if the consolidation operation has not been closed.
With the aforesaid observations the present recall application is disposed of.
(Arun Tandon, J.)
Order Date :- 15.12.2015
Sushil/-
Civil Misc. Recall Application No. 358586 of 2010
In
Case :- SECOND APPEAL No. - 67 of 2000
Appellant :- Rameshwar Dayal
Respondent :- Jumma & Others
Counsel for Appellant :- Madhur Prakash,Anil Kumar Aditya,Satish Dwivedi
Counsel for Respondent :- Bharat Singh,R.K. Mishra
Hon'ble Arun Tandon,J.
Disposed of.
For order, see order of date passed on the separate sheets.
(Arun Tandon, J.)
Order Date :- 15.12.2015
Sushil/-
