Mohd. Saif Ali & Ors. vs Addl. Commissioner (Judicial) ...
2021 Latest Caselaw 11443 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 18 ..............................................................A.F.R.
 

 
Case :- MISC. SINGLE No. - 22136 of 2021
 

 
Petitioner :- Mohd. Saif Ali & Ors.
 
Respondent :- Addl. Commissioner (Judicial) Ayodhya Division & Ors.
 
Counsel for Petitioner :- Santosh Kumar Mehrotra,Ishwar Dutt Shukla
 
Counsel for Respondent :- C.S.C.,Ajeet Srivastav,Mohan Singh
 

 
Hon'ble J.J. Munir,J.

1. Perused the Office report dated 06.12.2021, regarding service of notice upon respondent nos. 3, 6, 7 and 8 by registered post. The report reads to the following effect:-

"Notice were issued on 05.10.2021 and booked by the post office on 23.10.2021, 25.10.2021 through regd. post at correct address. Since then, neither any undelivered cover/AD received back nor any power has been filed on behalf of O.P. Nos. 3, 6, 7, 8.

Sd/- illegible

06.12.2021.

RO

M.S.-I"

2. A perusal of the aforesaid report, shows that service upon the said respondents, must be deemed sufficient. Accordingly, service upon respondent nos. 3, 6, 7 and 8, is held good.

3. Heard Mr. Mehandi Abbas Naqvi holding brief of Mr. I.D. Shukla, learned counsel for the petitioner, Mr. Mohan Singh appearing on behalf of the Gaon Sabha and Mr. Vinod Kumar Singh, learned Additional Chief Standing Counsel appearing on behalf of the State-respondents.

4. Mr. Ajit Srivastava appearing on behalf of the respondent nos. 1, 2 and 10 and Mr. Vivek Kumar Mishra appearing on behalf of the respondent nos. 11, 12 and 13, are not present when the case is called on.

5. None of the respondents have filed any counter affidavit.

6. Admit.

7. Heard forthwith.

8. The Additional Sub-Divisional Officer, Sadar, Sultanpur had before him Suit No. D201604680006159 under Section 229B of the U.P. Zamindari Abolition and Land ReformsAct, 1950, instituted by the petitioners and their predecessors. The suit appears to have been dismissed in default and restored to file on more than one occasion. The last successful restoration was on 12.07.2007. Thereafter, the suit was again dismissed in default on 29.01.2015. The application that was brought to set aside the order dated 29.01.2015 was to undo an episode of default.

9. The Additional Sub-Divisional Officer, Sadar, Sultanpur looked into the past conduct of the plaintiff-petitioners and came to the conclusion that they were not serious about prosecuting the suit. Accordingly, the Additional Sub-Divisional Officer, dismissed their restoration application vide order dated 11.08.2018. The plaintiff-petitioners assailed the order of the Additional Sub-Divisional Officer, Sadar, Sultanpur in revision before the Commissioner, Ayodhya Division, Ayodhya.

10. The revision, being Case No. 02478 of 2018, came up for determination before the Additional Commissioner (Judicial), Ayodhya Division, Ayodhya on 22.07.2021. Unfortunately, for the plaintiff-petitioners, the Additional Commissioner (Judicial) also looked at the issue in the same perspective, as the Trial Court. He reached the same conclusion as the Trial Court and dismissed the petitioner's revision. This is what has led the petitioner to institute the present petition under Article 227 of the Constitution of India.

11. Learned counsel for the petitioner submits that the approach of both the courts below is not only flawed and manifestly illegal, but also works serious injustice and prejudice to the plaintiff-petitioners. He submits that the approach of the two courts below is manifestly illegal, because it is not permissible for a Court, seized of a restoration application, to look at the past conduct of parties. All that has to be seen is the emergent sufficiency of cause on the date of default.

12. Mr. Mohan Singh, on the other hand, submits that past conduction of the respondent is also relevant, particularly, before this Court, where he is invoking our extraordinary jurisdiction under Article 227 of the Constitution.

13. This Court has considered the rival submission and perused the record. It is no doubt true that in the past, the plaintiff has defaulted on a total of four occasions and applied for restoration of this suit, where he was successful in three instances. The last default has put him in trouble, with the Courts below holding that the plaintiff is not interested in pursuing this cause.

14. A perusal of the records shows that the suit was dismissed in default on 29.01.2015, in absence of the plaintiff, but in the defendant's presence. The dismissal of the suit in default is, therefore, one governed by Order IX Rule 8 CPC. The right to restoration of the suit would be governed by Rule 9 of Order IX CPC. Rule 9 of Order IX reads:

"(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party."

(Emphasis by Court)

15. Now, a perusal of sub-rule (1) of Rule 9 of Order IX shows that a dismissal in default under Rule 8 of Order IX may be set-aside by the Court if the plaintiff, on an application to set-aside that order, satisfies the Court that "there was sufficient cause for his non-appearance when the suit was called on for hearing", to borrow the phraseology of the Statute. What is, therefore, relevant is the sufficiency of cause for non-appearance on the date when the suit is dismissed in default. The rule makes it pellucid that what is relevant is the sufficiency of cause on the date of default and not the past conduct of parties, or for that matter, the plaintiff's.

16. In this regard, reference may be made to the decision of this Court in Ram Raj and Others vs. Deputy Director of Consolidation and Others, 1988 RD 139, wherein it has been held:

"................... These facts were not controverted by the opposite party No. 3. The Deputy Director of Consolidation appears to have rejected them to be habitual defaulters. There appears to be no justification for such observation. However, be as it may, I am of the opinion that if there is valid excuse for the petitioners' absence on the date when the restoration application was dismissed for default, the previous negligence or want of diligence on their part to prosecute their case could not be made a ground dis-entitling the petitioners for restoration of the case."

17. Again in Phool Chand vs. Vth Additional District Judge and Others, Aligarh; 1983 ARC 637, it has been held:

"................The Prescribed Authority when recording the finding that petitioner deliberately absented has drawn heavily on the cirucmstances that even earlier the suit had been decided ex parte. This was wholly immaterial to decide if petitioner was prevented from sufficient cause in not appearing on the date fixed. Nor was he justified in drawing adverse inference against petitioner for absence on assumption that he was deliberately delaying the proceedings because despite notice in 1972 he did not comply with it and six years were wasted in guardianship proceedings. The revising authority fell in same error. "

18. There is yet another aspect of the matter. It is a salutary principle of law that in judging the sufficiency of cause in matters of default, the Court should lean in favour of hearing rather than what has been described as shutting out the doors of hearing. In this connection, reference may be made to the decisions of the Supreme Court in Sangram Singh vs. Election Tribunal, Kotah and Others, AIR 1955 SC 425, Ramji Das and Another vs. Mohan Singh, 1978 ARC 496 (SC) and the Collector, Land Acquisition, Anantnag and Another vs. Mst. Katiji and Others, (1987) 2 SCC 107.

19. In this case also, what was before the Court is a declaratory suit, where title to property is at stake. There is ex-facie no reason why the plaintiff, who has moved the Court, asking for declaration of his right, would not be interested in the trial of his cause and judgment on merits. The fact that an accident has happened more than once, does not make it any less an accident. At the same time, the plaintiff ought to be careful in future and should compensate the defendants in costs, subject to which alone, he would be entitled to restoration.

20. In the circumstances, this petition succeeds and is allowed. The impugned orders dated 22.07.2021, passed by the Additional Commissioner (Judicial), Ayodhya Division, Ayodhya and the order dated 11.10.2018, passed by the Additional Sub-Divisional Officer, Sadar, Sultanpur, are hereby set-aside and reversed. The petitioner's restoration application dated 27.02.2015 stands allowed, subject to payment of Rs. 5,000/- in costs to the defendants. These costs shall be deposited within a month of date with the Trial Court, which shall be paid to the defendants. The suit shall stand restored to file of the Additional Sub-Divisional Officer, Sadar, Sultanpur, who shall proceed in accordance with law.

Order Date :- 7.12.2021

Vik/-

(J.J. Munir,J.)