Allahabad High Court
Sanjay Kumar vs Addl.Session Judge/Fast Track ... on 29 August, 2022
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 8
Case :- MATTERS UNDER ARTICLE 227 No. - 17471 of 2017
Petitioner :- Sanjay Kumar
Respondent :- Addl.Session Judge/Fast Track Court-I Ambedkar Nagar And Ors.
Counsel for Petitioner :- Amit Srivastava
Counsel for Respondent :- Arvind Kumar Pathak
Hon'ble Abdul Moin,J.
Heard.
At the very out set, learned counsel for the petitioner contends that he does not intend to file any rejoinder affidavit and prays that the matter may be heard on merits. Accordingly, the Court proceeds to hear the matter.
As per the office report dated 17.07.2018, respondent nos. 6, 8 and 9 are deemed to have been served while other private respondents are represented by Sri Arvind Kumar Pathak, learned counsel.
Instant petition has been filed praying for setting aside the order dated 24.05.2017 passed by the Court below whereby the correction application dated 28.02.2017 numbered as 10-Ka has been rejected with a cost of Rs.200/-.
The case set forth by the learned counsel for the petitioner is that the petitioner had filed a suit for permanent injunction against the private respondents in October, 1986, which was dismissed vide judgment and order dated 16.02.2010. Being aggrieved, a first appeal was filed. During pendency of the first appeal, one Sri Ramjeet, who was impleaded as respondent no.5 in the said appeal, died. A substitution application was filed which was allowed and all the legal heirs of respondent no.5 were duly incorporated in the memo of the appeal. The appeal was dismissed for default on 24.02.2016. Immediately thereafter an application for restoration was filed on 01.03.2016. Inadvertently, the name of Sri Ramjeet was also indicated in the said application as respondent no.5. When the aforesaid fact came to the knowledge of the petitioner/appellant therein he filed an application for correction of the said error on 28.02.2017. The said application has been rejected vide order dated 24.05.2017, a copy of which is Annexure-1 to the petition, on the ground that the same should have been filed under the provisions of Order 22 Rule 4 read with Order 6 Rule 17 of the Civil Procedure Code. Being aggrieved, instant petition has been filed.
The contention of learned counsel for the petitioner is that the court below has patently erred in rejecting the application for correction inasmuch as it is not the case that the appeal had been filed against a dead person rather the appeal had been filed and substitution made and it was only when the appeal was dismissed for default and upon an application for recall of the said order was filed that the name of Sri Ramjeet was wrongly indicated as defendant. The same being an error rectification of which an application was filed which has wrongly been rejected by the court below. It is contended that the provisions of Order 22 Rule 4 and Order 6 Rule 17 of the CPC would not be applicable in the present facts of the case inasmuch as it was not in the appeal where the said application for correction was sought to be moved rather the correction was sought in the application and the same being a typographical error in the application, the error could very well be corrected.
On the other hand, Sri Arvind Kumar Pathak, learned counsel for the respondents, contends that, as has been observed by the court below, the application filed by the petitioner was not maintainable rather the same could have only been filed by the petitioner under Order 22 Rule 4 read with Order 6 Rule 17 of the CPC and hence no infirmity has been committed by the court below while rejecting the application filed by the petitioner.
Having heard learned counsel for the parties and having perused the records, what is apparent is that aggrieved against the dismissal of the suit vide judgment and order dated 16.02.2010, a first appeal had been filed by the petitioner. Admittedly, during pendency of the first appeal itself, the respondent no.5 Sri Ramjeet had died and his legal heirs have also been brought on record. The first appeal had been dismissed for default on 24.02.2016 and an application for recall of the said order/restoration of the first appeal was filed on 01.03.2016 but inadvertently, the name of Sri Ramjeet was indicated in the said application without noticing the fact that in the first appeal, the legal heirs of Sri Ramjeet had already been brought on record and substituted in the first appeal. Noticing this fact, an application for correction was filed on 28.02.2017 praying for correction of the error in the restoration application which has been rejected by the court below vide order dated 24.05.2017 on the ground that the application itself was not maintainable rather the application should have been filed under the provisions of Order 22 Rule 4 read with Order 6 Rule 17 of the CPC.
So far as Order 22 Rule 4 of the CPC is concerned, suffice to say that the same pertains to the procedure in case of death of one of several defendants or of sole defendant. Order 6 Rule 17 of the CPC pertains to amendment of the pleadings. It was not the case of the respondents that the respondent no.5 had died during the pendency of the appeal which required the procedure as provided under Order 22 Rule 4 and Order 6 Rule 17 of the CPC to be followed rather admittedly the legal heirs of the respondent no.5 namely Ramjeet had already been brought on record and duly substituted during pendency of the first appeal. Thus, at the most, the application dated 28.02.2017 was an application for correction filed by the petitioner for making correction in the application for restoration dated 01.03.2016. Thus, in view of this Court the said application merits to be allowed as the court below has patently erred in law while rejecting the said application.
Keeping in view the aforesaid discussions, the impugned order dated 24.05.2017 (Annexure-1 to the petition) is set-aside. The application no.10-Ka is restored to its original number for being decided by the court below in accordance with law after hearing all the parties concerned, keeping in view the aforesaid discussions. An order in this regard be passed within eight weeks from the date of receipt of a certified copy of this order.
The writ petition is disposed of.
Order Date :- 29.8.2022
A. Katiyar
