Mohammad Ayub vs District Judge Gonda And 3 Ors.
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 5
 
Case :- MATTERS UNDER ARTICLE 227 No. - 1312 of 2008
 
Petitioner :- Mohammad Ayub
 
Respondent :- District Judge Gonda And 3 Ors.
 
Counsel for Petitioner :- Sulabh Kumar Srivastava,A.P. Singh Vishen,Mohd. Ali,Pradeep Sinha,Ramesh Pandey,Shyam Mohan Pradhan
 
Counsel for Respondent :- C.S.C.,Q.M. Haque
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Heard learned counsel for the petitioner and Shri Q.M. Haque, learned counsel appearing on behalf of respondents no.3 and 4.

This petition has been filed praying for setting aside the order dated 15.5.2007 passed by the learned trial court by which the application paper no. Ga-2/6 under Section - 5 of the Limitation Act filed in support of application for recall of order under Order -9 Rule 13 CPC was rejected and this petition also prays for quashing of the order dated 05.02.2008 passed by the opposite party no.1 in Civil Revision No.137/2007 [Mahmood Ayub vs. Smt. Harunnisha & Others] and in Civil Misc. Appeal No.45/2007. [Mohd. Ayub versus Smt. Harunnisha and Others].

It is the case of the petitioner that he had purchased certain land situated in village - Gaivar Jot, hamlet of Retwagara, Pargana, Tehsil and District - Gonda by a registered sale-deed dated 03.02.1996 executed by the original tenure holder Abdul Samad.

The petitioner thereafter applied for mutation and his name was recorded in the revenue record on 15.4.1996. On 19.8.1996 Abdul Samad filed a civil suit no.930/1996 [Abdul Samad vs. Mohd. Ayub] before the Munsif Gonda praying for cancellation of sale-deed dated 03.02.1996 alleging fraud on the part of the petitioner. The petitioner had no knowledge of the filing of the civil suit no.930 of 1996 and, therefore, he could not appear. The suit was decreed ex-parte on 30.01.1999.

The petitioner derived knowledge of such order only on 18.01.2001 and filed an application under order 9 Rule 13 CPC along with an application for condonation of delay under Section - 5 of Limitation Act. His application under Section - 5 was allowed on 04.8.2003 at the cost of Rs.150/- which was deposited by the petitioner. After the order dated 04.8.2003 was passed the opposite parties no.3, 4 and 5 filed civil revision no.41/03 which was allowed by the learned Additional District Judge, Gonda on 07.5.2005 only on the ground that in the mutation proceedings the order was recalled by the Tehsildar on the basis of objection filed by the respondent.

In such objection in para 15 there was a specific mention of civil suit no.930/96 having been filed for cancellation of sale-deed by Abdul Samad. Such objection dated 26.9.1997 having been filed in the mutation case was in the knowledge of the defendant and, therefore, it cannot be said that he has no knowledge of pendency of the suit no.930/1996. The objection dated 26.9.1997 having been filed for the first time in the civil revision, the Additional District Judge remanded the matter to the trial court for consideration afresh of the application for recall filed by the petitioner.

The opposite party no.2 by his order dated 15.5.2007 recorded a finding that the petitioner had knowledge of the civil suit no.930/1996 on the basis of objection filed in the mutation case and, therefore, rejected his application no. Ga2/6 filed under Section 5 of the Limitation Act. As a result of rejection of application for condonation of delay, the application under Order 9 Rule 13 also stood rejected.

The petitioner filed a civil revision as also a miscellaneous civil appeal challenging said order dated 15.5.2007. The Additional District Judge consolidated the civil revision no.137/2007 with civil appeal no.45/2007 and rejected the same by a common order dated 05.02.2008.

It has been submitted by the learned counsel for the petitioner that the petitioner was never served a copy of the objection dated 26.9.1997 on the basis of which the Tehsildar Gonda recorded his order dated 15.4.1996. Since the objections were not served, date of knowledge of civil suit no.930/1996 cannot be presumed.

Learned counsel for the petitioner has placed reliance on para 23 & 24 of his petition. Learned counsel appearing on behalf of the contesting respondent has referred to Annexure-1 to the counter affidavit filed by them which is an order dated 27.8.1997 by which the Tehsildar had recalled the earlier mutation order dated 15.4.1996.

It has been submitted that after such recall was allowed objections were filed on 26.9.1997 in the court of Tehsildar in the presence of the petitioner and his counsel was given a copy of such objection. It has also been argued that the petitioner has for the first time raised this argument before this Court that no copy of objection was given to him in the Court of Tehsildar and, therefore, knowledge of pendency of civil suit no.930/1996 cannot be presumed. In the Tehsildar Court there is no practice of receiving any objection or application, therefore, no receipt can be filed to show that petitioner's counsel had received the objection and was in the knowing of the civil suit being pending since 1996 for cancellation of sale deed.

Learned counsel for the petitioner has submitted on the basis of para 19 of his rejoinder affidavit that the objection dated 26.9.1997 was not filed by the opposite party no.3 and 4 in the presence of the petitioner or his counsel in the mutation proceedings and he had no knowledge regarding pendency of civil suit no.930/1996 before January, 2001.

This Court having considered the arguments made by the learned counsel for the petitioner and pleadings on record has also gone through the order dated 15.5.2007 passed by the learned trial court on the application under Section - 5 of the Limitation Act filed along with the application under Order 9 Rule 13. This Court finds that the trial court has placed reliance on the objections filed before the Tehsildar in the mutation case by the respondent but has not made it the only reason for rejection of the application under Section 5 of the Limitation Act. The learned trial court has also observed that he has gone through the paper book and publication having been made on 15.11.1997, the delay in filing application for recall of ex-parte decree dated 30.01.1999 having not been explained properly, the application no. Ga 2/6 has been rejected, consequently, the application under Order 9 Rule 13 CPC also stood rejected.

This Court has also perused the judgment and order dated 05.02.2008 in civil revision no.137/2007 connected with civil appeal no.45/2007 and finds that the Additional District Judge has first mentioned the facts as stated hereinabove and then considered the question whether knowledge of regular suit no.930/1996 can be inferred on the defendant on the basis of paper no.16 Ga/1, i.e., the objection dated 26.9.1997 filed in the mutation case.

The Additional District Judge has observed that the petitioner had argued that when the mutation case was restored he could not notice the objection dated 26.9.1997 which was moved later on by the respondent whereas it was the case of the respondents that the mutation case was still pending after restoration and the objection being filed in the mutation case, the petitioner had derived knowledge of civil suit no.930/1996 remaining pending before the learned trial court for cancellation of sale-deed soon thereafter. The learned Additional District Judge after considering the said arguments has also noticed from the record that the inspection application allegedly submitted for inspection of record of case no. R.S. No.930/1996 was not accompanied by any vakalatnama and it did not contain any signature of learned counsel for the revisionist, therefore, no inference could be drawn that the revisionist had indeed given such application. The learned Additional District Judge thereafter observed that the ex-parte judgment and order dated 30.01.1999 allegedly came into the knowledge of the petitioner/ revisionist on inspection of file on 18.01.2001 but no explanation has been given for convincing that the petitioner derived no knowledge from the objection that was filed earlier in the mutation case.

This Court having considered the order of the learned trial court as also of the learned Additional District Judge and finds that both the orders impugned have been based upon the objection dated 26.9.1997 filed in the mutation case mentioning in para 15 thereof of the fact of the pendency of the civil suit no.930/1996 for cancellation of sale-deed, however, the petitioner's contention regarding non-receipt of objections dated 26.9.1997 during mutation proceedings has not been adverted to either by the learned trial court or by the learned Additional District Judge. The decree having been passed ex-parte on 30.01.1999 depriving the petitioner of valuable right over two plots of land and construction thereon, this Court finds it appropriate to set-aside the order dated 15.5.2007 and 05.02.2008 and remand the matter to the learned trial court to consider afresh the petitioner's pleading that he had not received any copy of the objection dated 26.9.1997 allegedly filed by the respondents in the mutation proceedings and, therefore, knowledge could not be presumed on the part of the defendants, i.e., the petitioner regarding pendency of the suit in question. Pleadings having been exchanged between the parties before the learned trial court and the matter is old, it is expected that the learned trial court shall consider the application for condonation under Section - 5 read with application under Order 9 Rule 13 filed by the petitioner at the earliest, say within a period of three months from the date a copy of this order is produced before it.

With the aforesaid, the petition is disposed of.

Order Date :- 7.4.2022

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