Allahabad High Court
Kalp Nath Singh And Another vs Special Judge E.C.Act Faizabad ... on 20 May, 2022
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 19
Case :- WRIT - C No. - 1002276 of 2002
Petitioner :- Kalp Nath Singh And Another
Respondent :- Special Judge E.C.Act Faizabad And 3 Others
Counsel for Petitioner :- N.N. Jaiswal,Geeta Rani,Shiva Nand Pandey,Umajeet Gupta
Counsel for Respondent :- C.S.C.,J.C. Srivastava,R.K. Srivastava
Hon'ble Pankaj Bhatia,J.
C.M. Applications No. 20143 of 2002 and 20144 of 2002
Heard.
Cause shown is sufficient. The delay in filing the substitution application is allowed.
The applications are allowed.
Let the necessary substitution be carried out in the array of the parties during the course of the day.
Order on merits.
The present petition has been filed challenging the judgment and order dated 12.07.2002 whereby the matter was remanded by the appellate court for adjudication of the suit on merits.
The facts, in brief, are that one Brij Bihari filed a suit for the cancellation of a sale deed dated 17.03.1999 executed by Munnu Nishad in favour of Kalp Nath Singh and Onkar Nath Tiwari. Along-with the said suit, the application for permanent injunction was also filed prayed. During the pendency of the suit, the defendants (petitioner herein) took a specific objection with regard to the maintainability of the suit by virtue of the bar created under section 49 of the U.P. Consolidation of Holdings Act. The Civil Court heard the said objections and after framing a preliminary issue decided the same in favour of the defendant and declared the suit as abated vide order dated 26.07.2001. The plaintiff to the suit preferred an appeal against the said order. The appellate court discussed the scope of section 49 of the U.P. Consolidation of Holdings Act and was of the view that as the suit was for cancellation of the sale deed and not for any relief as is prayed or within the scope of Consolidation of Holdings Act proceeded to set aside the order dated 26.07.2001 and remanded the matter for adjudication on merits.
The counsel for the petitioner argues that the suit was barred as the consolidation proceedings were going on and thus, the order passed by the appellate court was wrong.
The counsel for the respondents, on the other hand, argues that as the suit was filed for cancellation of the sale deed mainly on the ground that the sale deed was null and void, the bar as contained under section 49 of the U.P. Consolidation of Holdings Act would not bar the suit before the Civil Court. The appellate court relied upon various judgments to hold that the suit for the reliefs claimed would be maintainable before the Civil Court.
In the present case, the suit was specific to the extent that it is sought for cancellation of the sale deed on the ground of same being void, clearly in view of the law laid down in various judgments referred to in the appellate court, the jurisdiction correctly lay before the Civil Court. No error can be found in the said order.
The writ petition lacks merit and is dismissed.
Order Date :- 20.5.2022
VNP/-
