Union Of India,Ministry Of ... vs Gulab Chandra & Others
2017 Latest Caselaw 4837 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Reserved
 
Court No. - 26
 

 
Case :- WRIT - C No. - 26387 of 2001
 

 
Petitioner :- Union Of India,Ministry Of Defence & Another
 
Respondent :- Gulab Chandra & Others
 
Counsel for Petitioner :- Mohd. Isa Khan,Rakesh Sinha,Satish Kumar Rai
 
Counsel for Respondent :- C.S.C.,Ankush Tandon,S. Shandilya,V. Shandilya
 

 
Hon'ble Siddhartha Varma,J.

Heard Sri Ashok Mehta, learned Senior Counsel assisted by Sri S.K. Rai, learned counsel for the petitioners and Sri H.N. Singh, learned Senior Counsel assisted by Sri Ankush Tandon and Sri S. Shandilya, learned counsel for the respondents.

Suit No. 33 of 1980 as was filed by the respondents no. 1 to 7 was decreed ex parte on 18.3.1982. Aggrieved thereof, the petitioners filed an application under Order IX Rule 13 of the C.P.C. which was accompanied with an application under Section 5 of the Indian Limitation Act on 10.1.1985. The application under Section 5 of the Indian Limitation Act was dismissed on 30.10.2000 and consequently, the application under Order IX Rule 13 of the C.P.C. was also dismissed. The petitioners filed a First Appeal From Order under Order XLIII Rule 1(d) of the C.P.C. against the order dated 30.10.2000. This First Appeal From Order was dismissed on 9.1.2001. Against the part of the order dated 30.10.2000 by which the application under Section 5 of the Indian Limitation Act was dismissed, the petitioners had also filed a Civil Revision. Though the memo of the revision states that it was filed against such part of the order by which the application under Section 5 of the Indian Limitation Act was rejected, a perusal of the order dated 11.4.2001, by which the Revision was dismissed, reveals that the petitioner, before the revisional Court, had challenged the whole of the order dated 30.10.2000.

Aggrieved by the ex parte decree dated 18.3.1982, dismissal of the applications under Order IX Rule 13 of C.P.C. on 30.10.2000, the appellate order 9.1.2001 and the revisional order dated 11.4.2001, the instant writ petition has been filed.

The counsel for the petitioner made the following submissions:-

I. once when the issues were struck between the parties after the exchange of pleadings on 5.11.1981 then it was mandatory on the part of the Trial Court to have proceeded as per the procedure provided under Order XIV Rule 2 and Order XX Rule 5 of the C.P.C. and should have pronounced the judgement on all the issues separately. The counsel for the petitioner read out the two provisions and so they are being reproduced here as under:-

1. Order XIV Rule 2. Court to pronounce judgement on all issues:- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to?

(a) the jurisdiction of the court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.

2. Order XX Rule 5. Court to state its decision on each issue.- In Suits in which issues have been framed, the court shall state its finding or decision, with the reasons there for, upon each separate issues, unless the finding upon any one or more of the issues is sufficient for the decision of the Suit.

II. In the absence of the pronouncement of the judgement on all the issues, the decision, he submits would be a nullity.

III. He further submitted that the court below while deciding the application under Section 5 of the Indian Limitation Act did not deal with the arguments of the petitioner and dismissed the application by applying very strict standards. A lenient view had to be taken and this not having been done the decision rendered in the first appeal and the Revision both were to be set aside.

IV. The counsel for the petitioners further submitted that the case of the respondents was that their land was requisitioned whereas the case of the petitioners, in paragraph 18 of the written statement was that the land had, in fact, been acquired and, therefore, the decree of the Trial Court would be in-executable.

V. The counsel for the petitioners further stated that even if the decision rendered in the Suit, the First Appeal From Order and in the Revision were not to be looked into by this Court because of the existence of certain alternative remedies, the initial judgement and decree which was passed ex parte can always be examined by this Court under its supervisory jurisdiction bestowed by Article 227 of the Constitution of India and the ex parte judgement and decree dated 18.3.1982 passed by the Trial Court can be quashed.

In this regard, he cited AIR 1977 (2) SCC 724(State of U.P. And others Vs. M/s. Indian Hume Pipe Co. Ltd.), AIR 1969 SC 556(M/s. Baburam Prakash Chandra Maheshwari V. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar), AIR 1973 (1) SCC 745(Patel India (Private) Ltd. Vs. Union of India and others) and AIR 1999 SC 22(Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others) and submitted that even if the petitioner did not challenge the ex parte judgement and decree dated 18.3.1982 by filing a first appeal under Section 96 of C.P.C. he can challenge the same, in this Court, under article 227 of the Constitution of India.

In reply, the learned counsel for the respondents-plaintiffs submitted that in view of the specific provision provided under Section 96 of the C.P.C. and the judgments rendered in 1991 (4) SCC 379(Ghan Shyam Das Gupta and Another Vs. Anant Kumar Sinha and Others), JT 1996 (3) SC 21(Swetamber Sthanakwasi Jain Samiti and Another Vs. The Alleged Committee of Management Sri R.J.I. College, Agra & Ors.), JT 1996 (3) SC 564(Durga Prasad V. Naveen Chandra & Ors.) this Court should not exercise its extraordinary jurisdiction conferred on it under Article 226 and 227 of the Constitution of India and perform the functions of a Civil Court under the ordinary law and further stated that when a definite remedy under the C.P.C. was provided for challenging the judgement and decree dated 18.3.1982 then the petitioners should be sent there to ventilate their grievances. He further pointed out that after the writ petition was filed it was dismissed in default on 17.5.2004 and, therefore, the decree had become final. A further submission was made that when the ex parte decree was not being executed then the respondents had approached the High court by means of a writ petition being Writ Petition No. 62061 of 2008 wherein this Court was pleased to pass an order on 30.7.2015 by which District Magistrate was directed to consider the application of the petitioners dated 22.1.2001 which was to be decided by him in the light of the decree passed by the Civil Court dated 18.3.1982.

The relevant portion of the order dated 30.7.2015 which was read out by the counsel for the petitioners is being reproduced here as under:-

?It is no doubt correct that decree could have been put into execution by the petitioner. However, we cannot shut our eyes to the fact that the District Magistrate/Collector, as a public authority, was under an obligation to comply with the decree. Moreover, now there is absolutely no justification to relegate the petitioner to the remedy of filing execution when this writ petition has remained pending before this Court for almost 7 years and the net result of the execution would be, that an order would have to be passed by the District Magistrate in compliance of the execution of the decree.

In such circumstances, we feel it appropriate that a mandamus be issued to the District Magistrate to consider and decide the application made by the petitioner dated 22nd January, 2001 in accordance with law by means of a reasoned and speaking order in the light of the decree passed by the civil court within a period of six weeks from the date of production of a certified copy of this order.

With the aforesaid observations and directions, writ petition stands disposed of.?

In the end he has stated that when the Appellate Court while passing the order dated 9.1.2001 in the F.A.F.O. and the revisional court on 114.2001 while dismissing the revision had found that there was no ground for condoning the delay in filing the application under Order 9 Rule 13, then this court under its writ jurisdiction cannot reassess the evidence on the basis of which the Courts below had dismissed the application of the petitioners under Order IX Rule 13 of the C.P.C., the F.A.F.O. and the Revision.

Upon having heard the learned counsel for the parties and after having gone through the record, I am of the view that the orders dated 9.1.2001 and 11.4.2001 cannot be interfered with and also this Court cannot sit in appeal over the judgement and decree dated 18.3.1982. The Appellate Court while dealing with the First Appeal From Order went into the minutest detail of the applications as had been filed by the petitioners and had found that no reason whatsoever had been provided by the petitioners for having approached the Court belatedly.

The Court below thus had found that the petitioners had not been able to make out any case for the recalling of the ex parte decree. So far as the submissions of the learned counsel for the petitioners regarding the entertainment of the writ petition against the ex parte decree is concerned, suffice it to say that when an efficacious alternative remedy is available under Section 96 of the C.P.C., this Court under no circumstance would interfere under its writ jurisdiction against the judgment and decree dated 18.3.1982. The shortcomings as have been pointed out in the judgement and decree dated 18.3.1982 can be very well placed before the First Appellate Court.

It is essential that the petitioners may approach the Appellate Court because a decision on disputed issues is always dependent on the consideration of evidence which either was led by the parties or might be led by them and therefore procedure as is prescribed by the C.P.C. cannot be bye-passed by availing the extraordinary jurisdiction under Article 226 and 227 of the Constitution of India. The re medy provided under Article 226 or Article 227 is not intended to supersede the modes of obtaining relief before a civil court or to deny defences legitimately open in such actions. The jurisdiction to issue a writ of certiorari is supervisory in nature and is not meant for correcting errors like an appellate court.

Under no circumstance should the High Court permit its extraordinary jurisdiction to be converted into a civil court under the ordinary law.

In view of what has been stated above, there is no merit in the writ petition/application under Article 227 of the Constitution of India. The petition is, therefore, dismissed, leaving it open to the petitioners to avail such alternative remedy as might be available to them under the ordinary common law.

Order Date :- 22/9/2017

praveen.