Allahabad High Court
Shabbir Husain And Others vs Addl. Magistrate/Asst Collector ... on 23 October, 2017
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 25
Case :- WRIT - C No. - 53309 of 2008
Petitioner :- Shabbir Husain And Others
Respondent :- Addl. Magistrate/Asst Collector And Others
Counsel for Petitioner :- A.R. Dube,Ashwani Kumar Shukla,Jiya Lal Patel
Counsel for Respondent :- C.S.C.,Diwakar Singh,V.K. Singh
Hon'ble Siddhartha Varma,J.
After the suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 was filed by the petitioners' predecessor in interest and the same was decreed on 14.10.1997, the respondent -Gaon Sabha filed an application for the recall of the decree on various grounds on 13.02.2008. The Additional District Magistrate on 20.09.2008 after more than ten years recalled the order / decree dated 14.10.1997. Aggrieved thereof the petitioners have approached this Court.
Heard Sri A.R. Dubey, learned counsel for the petitioners. No one is present for the Gaon Sabha.
The contention of the petitioners is that the U.P. Zamindari Abolition and Land Reforms Act, 1950, by Section 341 has applied the Code of Civil Procedure, 1908 and the Indian Limitation Act, 1963, to the proceeding under the U.P. Zamindari Abolition and Land Reforms Act yet without applying the provisions of Order IX Rule 13 of the Code of Civil Procedure and the provisions of Section 5 of the Indian Limitation Act, the Court below has allowed the application for the recall of the judgement and decree dated 14.10.1997, and therefore was an erroneous order.
After having gone through the record of the case I am of the view that the order dated 20.09.2008 was wrongly passed and the writ petition deserves to be allowed.
The contents of paragraphs 7,8 and 9, the writ petition were read out by the learned counsel for the petitioner and are therefore being reproduced here asunder:-
7. "That it appears that most hopelessly and belatedly an application for recalling the earlier judgement and decree dated 14.10.1997 was preferred by Suresh Kumar, respondent No.2, present Pradhan addressed to the Public Relation Officer attached to Minister of Samaj Kalyan and Bal Vikas, Pustahar, Krishi Vipran etc. A copy of the application dated 22.8.2007 along with the endorsement.
8. That the impugned order dated 20.9.2008 is wholly arbitrary, illegal and not sustainable in the eyes of law, inasmuch as much too belated application for restoration / recalling the order dated 14.10.1997 has been moved after 10 years.
9. That no reason muchless cogent reason has been given in the impugned order nor any application for condoning the delay for recalling the order has been moved, but on extraneous reason muchless at the behest of the minister concerned in whose name the application has been moved, and the P.R.O. Sri Ram Lakhan Bhartiya, has referred the matter and at his behest the present impugned order has been passed."
The learned counsel for the petitioners has very categorically submitted on the strength of the averements made in the writ petition that no application for the condonation of delay was filed by the respondents. In the counter affidavit, the Gaon Sabha has only stated that the contents of the paragraphs 7 to 11 were false and frivolous. Since the learned counsel for the petitioners also read out the contents of the paragraph 6 of the counter affidavit, the same are also reproduced here asunder:-
"That the contents of paragraphs No. 7 to 11 of the writ petition are false and frivolous, hence vehemently denied. In reply thereof, it is submitted that suit filed by petitioner or his father is barred by Section 49 of the U.P.C.H. Act and as such, the judgement/decree dated 14.10.1997 is an ex-parte and therefore, the same is liable to be rejected. As soon as gaon sabha came to know about the aforesaid ex-parte judgement and decree, gaon sabha filed restoration application on 13.02.2008 and thereafter the ex-parte judgement and decree dated 14.10.1997 was set-aside and suit has been restored to its original number and time was granted to file objection by impugned order dated 20.09.2008. A true copy of restoration application dated 13.02.2008 with affidavit for condonation of delay and photocopy of C.H. Form 45 are being filed herewith and marked as Annexure C.A. 1 & C.A.2 respectively to this affidavit."
Section 341 of the U.P. Zamindari Abolition and Land Reforms Act, applies the provisions of the Code of Civil Procedure and the Indian Limitation Act. Section 341 of the U.P. Zamindari Abolition and Land Reforms Act is also being reproduced here asunder:-
"Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1870 (VII of 1870), the Code of Civil Procedure, 1908 (V of 1908), and the [Limitation Act, 1963 (XXXVI of 1963)], [including Section 5 thereof] shall apply to the proceedings under this Act."
Since the Code of Civil Procedure and the Indian Limitation Act applied, it was imperative that the respondents -Gaon Sabha should have moved a recall application along with an application for the condonation of delay. This not having been done there was no authority with the Court below to have passed the order.
Order IX Rule 13 of the Code of Civil Procedure very categorically states that an ex-parte decree can only be set aside if the Court is of the view that summons were not served on the defendant or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Neither the recall application nor the order reveals that the notices were not served on the defendant. They also do not show if the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing.
The application in fact has taken such grounds which could have been taken only in an appeal. The prayer in the application does not show that the applicant had prayed for the condonation of a delay of about 10 years. Gaon Sabha is a public body and like a private individual cannot say that it had no information. All suits under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act are filed after the Gaon Sabha is put to notice. Therefore, it did not lie in the mouth of the Gaon Sabha to say that it did not have notice of the suit.
Under such circumstances, the order dated 20.09.2008 is quashed and the writ petition is allowed.
Order Date :- 23.10.2017 /vkj
