Allahabad High Court
Ram Sunder vs Ram Ji & Ors. on 14 July, 2021
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- MISC. SINGLE No. - 24055 of 2018
Petitioner :- Ram Sunder
Respondent :- Ram Ji & Ors.
Counsel for Petitioner :- Alok Kirti Mishra,Ashish Tripathi
Hon'ble Rajnish Kumar,J.
1. Heard Sri Alok Kirti Mishra, learned counsel for the petitioner. None appeared on behalf of the opposite parties and as per the affidavit of service filed by the petitioner in regard to dasti notice, respondents had refused to take the notice.
2. This petition under Article 227 of the Constitution of India has been filed challenging the judgment and order dated 15.05.2018 passed in Revision No.103 of 2014(Ramji & Others versus Ram Sunder and another).
3. Submission of learned counsel for the petitioner is that the petitioner is defendant no.1 in the suit before the trial court and without hearing the petitioner, the survey commission report and map was confirmed by means of the order dated 19.04.2008. Therefore the petitioner had filed an application for recall of the order dated 19.04.2008 and after considering the same, the application was allowed by means of order dated 15.10.2014 and case was fixed for disposal of objection on survey report. The revision was filed against the order dated 15.10.2014 by the opposite parties and the revision has been allowed without recording any jurisdictional error in the order passed by the trial court. Therefore the petitioner is constrained to approach this Court. Accordingly, he submitted that the impugned order is not sustainable as only an opportunity has been given to the petitioner on the objection submitted to the survey commission report.
4. I have considered the submissions of learned counsel for the petitioner and perused the records.
5. It appears that the survey commission report and map was submitted and the same was confirmed by means of the order dated 19.04.2008 after hearing learned counsel for the parties, a copy of which has been annexed as Annexure No.5 to the writ petition. Subsequently the petitioner had filed an application for recall of the order dated 19.04.2008 on the ground that the pairavi of the case was being done by the defendant no.2 and he could not know that any survey commission report has been filed. No survey commission was conducted therefore report could not have been filed. Therefore due to some differences with defendant no.2, he engaged another counsel and filed an application for recall, which was allowed. But trial court failed to consider that counsel for the petitioner i.e. defendant no.1 was present on 19.04.2008, the date on which the survey commission report and map was confirmed and ,merely, because the petitioner had engaged another counsel due to alleged differences with defendant no.2 after about an year of passing of the order cannot be a ground to recall the order on the ground that he was not heard.
6. The revisional court has recorded a categorical finding that after two and a half years of passing of the order of confirming the survey commission report, defendant no.1 i.e. the petitioner had filed an application for recall alleging that due to some differences between the defendant no.1 and defendant no.2 in March 2009, proper Pairvi was not done by defendant no.2 on behalf of defendant no.1. Therefore, it cannot be said that on the date of passing of order on 19.04.2008 proper Pairvi was not done by the defendant no.2 because the order was passed after hearing both the parties. But it was not considered by the trial court. Therefore the trial court had passed the order in an illegal manner. Therefore the revision has rightly been allowed and the trial court has been directed to pass a fresh order after hearing both the parties in the light of the observations made in the order. This Court does not find any illegality or error in the impugned order.
7. The writ petition is misconceived and lacks merit. It is, accordingly, dismissed. No order as to costs..
.
...................................... .......(Rajnish Kumar,J.)
Order Date :- 14.7.2021/Akanksha
