Allahabad High Court
Gram Panchayat Village Dehra vs Chhida And 46 Others on 5 April, 2023
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- SECOND APPEAL DEFECTIVE No. - 205 of 2020
Appellant :- Gram Panchayat Village Dehra
Respondent :- Chhida And 46 Others
Counsel for Appellant :- Yadvendra Pratap Singh,Sanjai Singh
Counsel for Respondent :- Syed Mohammad Abbas Abdy
Hon'ble Dinesh Pathak,J.
Heard Sri O.P. Singh, Senior Advocate, assisted by Sri Sanjai Singh, learned counsel for the applicant/appellant and Sri Syed Mohammad Abbas Abdy, learned counsel for the respondent nos. 4, 5, 15, 19 and 20.
As per endorsement made by the Reporting Section, there is delay of 343 days in filing the instant second appeal assailing the judgment and decree dated 30.05.2019 passed by first appellate court reversing the judgment dated 07.03.2017 passed by trial court. While reporting the matter, stamp reporter has also endorsed the defect with regard to non-filing of the certified copy of the judgment and decree passed by the First Appellate Court as well as the Trial Court. Vide order dated 25.08.2020 notices were ordered to be issued to the opposite party on delay condonation application. After service of notice, an abatement application being Civil Misc. Abatement Application No.6 of 2020 dated 11.11.2020 has been filed on behalf of the respondents with an averment that the appeal has been filed against the dead person inasmuch as respondent no.24 (Gaffar) had already died before filing the appeal. While entertaining the delay condonation application following order dated 21.11.2022 has been passed inviting the applicant/appellant to reply the preliminary objection raised on behalf of the respondents:-
"A preliminary objections has been raised on behalf of counsel for the respondents with regard to the maintainability of the Delay Condonation application filed along with second appeal on behalf of Gram Panchayat through private counsel inasmuch as neither resolution has been passed on behalf of Gaon Sabha to file the Second Appeal along with Delay Condonation Application nor prior permission has been obtained from the authority competent to file appeal through private counsel.
Learned counsel for the appellant prays for and is granted three weeks' time to explain maintainability of Delay Condonation Application along with Second Appeal, filed on behalf of Gaon Sabha, in the light of the preliminary objection raised by counsel for the respondent.
List this matter on 20.12.2022."
In the meantime, learned counsel for the respondents has filed Criminal Misc. Application No.09 of 2021 under Section 340 Cr.P.C. to punish the deponent (Fariyad S/o Maharban) who has filed delay condonation application along with the appeal being the Parokar of the Gram Panchayat. On the aforesaid application following order dated 14.02.2023 has been passed by this Court:-
"Criminal Misc. Application No. 9 of 2021 (under Section 340 Cr.P.C.):
Heard Shri S.M.A. Abdy, learned counsel appearing for the respondent.
This Court vide order dated 20.11.2022 had recorded preliminary objection raised on behalf of Shri Abdy, learned counsel for the respondent regarding maintainability of the appeal as also the delay condonation application filed on behalf of Gram Panchayat through private counsel. In the absence of any resolution passed by the Gaon Sabha, this Court by the said order had required the learned counsel for the appellant to explain the maintainability of the delay condonation application as also the second appeal filed on behalf of Gaon Sabha.
Shri Abdy submits that in response to the said order of this Court, no affidavit has been filed till date and the appellant is not appearing in the case. He further submits that he has filed an application under Section 340 Cr.P.C. against the deponent, namely, Fariyad who has sworn the affidavit in support of the delay condonation application filed along with the memo of second appeal and also submits that the vakalatnama of Pradhan is forged and fabricated inasmuch as the Pradhan has categorically stated that she had neither instructed any counsel to file an appeal on behalf of Gram Panchayat nor executed any vakalatnama in favour of Shri Sanjai Singh and Shri Yadvendra Pratap Singh, counsels who have filed the present second appeal. In the application under Section 340 Cr.P.C. various allegations have been raised and prayer has been made that proceedings under Section 340 Cr.P.C. be initiated against the deponent, namely, Fariyad son of Maharban, resident of 775, Mirchiyan Mohalla, village Dehra, District Hapur.
Since, the counsel for the appellant has not responded to the order passed by this Court dated 21.11.2022, this Court is left with no option but to issue notices on the application under Section 340 Cr.P.C.
Let notices be issued to Fariyad son of Maharban, resident of 775, Mirchiyan Mohalla, village Dehra, District Hapur through Chief Judicial Magistrate concerned requiring his presence before this Court to explain under what circumstances and under whose instructions, the present second appeal has been instituted before this Court.
List this case on 15.3.2023."
During pendency of the matter, a withdrawal application being Civil Misc. Withdrawal Application No.19 of 2023 has been filed on behalf of appellant supported by affidavit of Fariyad to dismiss the instant appeal along with the delay condonation application as withdrawn. In paragraph No.6 of the affidavit filed in support of the withdrawal application and in paragraph No.19 of the counter affidavit filed in the Criminal Misc. Application under Section 340 of Cr.P.C. Fariyad (deponent) has tendered unconditional apology for filing the appeal along with a delay condonation application without proper instructions from the authority concerned.
It is apposite to mention that at present the appeal itself is not competent to entertain inasmuch as application for the condonation of delay under Section 5 of the Limitation Act is still pending consideration and appeal is registered as a defective appeal because of pendency of the delay condonation application and the defects as endorsed by the Stamp Reporter at the time of reporting the appeal.
Having considered the submission advanced by learned counsel for the parties and the facts and circumstances of the matter as averred in the affidavit filed in support of the withdrawal application and the counter affidavit filed by Mr. Fariyad in the application under Criminal Misc. Application under Section 340 Cr.P.C. and unconditional apology tendered on behalf of Fariyad S/o Maharban, no useful purpose would be served to keep this matter pending, therefore, this Court deems it appropriate to dismiss the instant appeal along with delay condonation application under Section 5 of the Limitation Act as withdrawn.
In this conspectus, as above, delay condonation application under Section 5 of the Limitation Act filed on behalf of the Gram Panchayat supported by affidavit of Mr. Fariyad is hereby dismissed as withdrawn without any liberty. Accordingly, the second appeal preferred against the judgment dated 30.05.2019 passed by Learned Additional District and Sessions Judge, Fast Track Court-II Hapur in Civil Appeal No.48 of 2017 reversing the judgment dated 07.03.2017 passed by Civil Judge (Senior Division)-II Hapur in Original Suit No.120 of 2017 is dismissed as well.
Mr. Fariyad, who is present in the Court, has been duly identified by his counsel and his presence is hereby dispensed with.
In view of the order of the date as above, all other miscellaneous applications, as pending in the present appeal, are hereby disposed of.
Order Date :- 5.4.2023
SP/-
