Ramvir Singh vs State Of U.P. And 5 Others
2023 Latest Caselaw 22486 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?AFR
 
Neutral Citation No. - 2023:AHC:167830
 
Court No. - 51
 

 
Case :- WRIT - C No. - 22242 of 2023
 

 
Petitioner :- Ramvir Singh
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Dwijendra Prasad
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Dwijendra Prasad, learned counsel for the petitioner and Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents.

2. The instant petition has been filed for the following reliefs:

"i. issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 29.4.2023 passed by Additional Commissioner, Agra Division, Agra in Revision No.81 of 2012-13 (Computerized Case No.C2013100000274), under Section 333 of U.P.Z.A. & L.R. Act and order dated 18.01.2013 passed by Assistant Collector First Class/ Revenue Officer Mainpuri in Case No.95 of 2009-10 under Section 229B of U.P.Z.A. & L.R. Act (Ramvir Singh vs. Vinod and Others).

ii. issue a writ, order or direction in the nature of mandamus commanding the respondents not to disturb the right, title and possession of the petitioner over the land in dispute well described in the writ petition, except following the dues required procedure in accordance with law.

iii. issue a writ, order or direction in the nature of mandamus to the respondent authorities commanding them to keep intact the entries in the relevant statutory records as it is today up to the time until and unless the same are ordered to be modified, varied or expunged by any competent judicial forum.

iv. issue a writ, order or mandamus in the nature of mandamus commanding the Executive authorities not to dispossess the petitioner by any administrative fiat except otherwise than in accordance with law.

v. Pass such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

vi. Award the cost of the petition in favour of the petitioner."

3. Brief facts of the case are that petitioner filed a suit under Section 229B of U.P.Z.A. & L.R. Act for declaration that the petitioner be declared bhumidhar with transferable right in respect to plot no.638, 736, 762, 774, total four plots area 1.234 Hectare. On the basis of possession, State has filed written statement in the aforementioned suit. Trial Court vide ex-parte judgment and decree dated 7.1.2013 decreed the plaintiff's suit. On 18.1.2013, State filed an application under Order 9 Rule 13 of Code of Civil Procedure for setting aside the ex-parte judgment and decree dated 7.1.2013. Trial Court vide order dated 18.1.2013 allowed the application dated 18.1.2013 filed by State setting aside the ex-parte judgment dated 7.1.2013 and restored the suit for fresh decision on merit. Petitioner challenged the order dated 18.1.2023 through revision before Commissioner which has been dismissed vide order dated 29.4.2023, hence this writ petition on behalf of petitioner challenging the orders dated 29.4.2023 and 18.1.2023.

4. Learned counsel for the petitioner submitted that the suit under Section 229B of U.P.Z.A. & L.R. Act filed by the petitioner has been decreed after filing of written statement by the State. He further submitted that in place of filing appeal under Section 331 (3) of U.P.Z.A. & L.R. Act, an application under Order 9 Rule 13 of Code of Civil Procedure was filed by the State after three days from deciding the suit under Section 229B of U.P.Z.A. & L.R. Act. He further submitted that the trial Court has allowed the application filed under Order 9 Rule 13 of C.P.C. in arbitrary manner. He next submitted that the petitioner filed a revision against the order allowing the application filed by the State which has been also dismissed in arbitrary manner. He also submitted that once the procedure prescribed has not been followed, the order impugned cannot be sustained. He further placed reliance upon the judgment of Apex Court reported in 2008 AIR (SC) 1006 (Sunil Poddar & Others vs. Union Bank of India) in order to demonstrate that the procedure prescribed should be followed for recalling the order passed in the proceeding.

5. On the other hand, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel submitted that the trial Court has decreed the plaintiff's suit by passing cryptic order. He further submitted that although issues have been framed but there is no adjudication of the suit as required to be decided in the proceeding under Section 229 B of U.P.Z.A. & L.R. Act. He also submitted that after framing issues, the issues are to be adjudicated in accordance with law but the trial Court while decreeing the plaintiff's suit has passed the cryptic order that the plaintiff has proved the case of adverse possession without discussing any evidence relied upon by the plaintiff in the suit. He further placed reliance upon the judgment reported in (2016) 133 R.D. 375, Kallu Khan and 6 Others vs. Commissioner Chitrakoot Dham Division Banda and three Others, in order to demonstrate that even the ex-parte judgment are to be passed after considering the evidence adduced by the plaintiff.

6. I have considered the argument advanced by learned counsel for the parties and perused the record.

7. There is no dispute about the fact that the suit under Section 229B of U.P.Z.A. & L.R. Act filed by the plaintiff-petitioner was decreed by the trial Court but the on the application under Order 9 Rule 13 of C.P.C. filed by the State after three days from the passing of the judgment was recalled and suit has been restored to its original number for fresh decision in accordance with law.

8. Since, the suit under Section 229 B of U.P.Z.A. & L.R. Act has been decreed by passing cryptic order dated 7.1.2013, as such, the perusal of the same will be relevant, which is as follows:

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9. The judgment of trial Court as quoted above reveals that there is no proper adjudication of suit filed by the petitioner under Section 229B of U.P.Z.A. & L.R. Act. It is material that even in the ex-parte judgment there should proper consideration and analysis of the evidence of the plaintiff and there should be proper adjudication of the dispute as suit under Section 229B of U.P.Z.A. & L.R. Act now under Section 144 of U.P. Revenue Code, 2006 is of special character, which can not be decided by passing cryptic judgment.

10. The judgment cited by Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents in the case of Kallu Khan and Others (supra) is also relevant for perusal. Paragraph no.16 to 23 of the judgment rendered in Kallu Khan and Others (supra) are relevant, which are as under:

"16. It would be relevant to note that 6 issues have been framed consequent to the written statement filed by the State of U.P. Although, the Trial Court by its order dated 05.04.2010 decreed the suit, it did not refer to any of the issues framed. This order does not refer to any submissions made on behalf of the State or the Gaon Sabha. It is therefore clear that the order dated 05.04.2010 is clearly exparte against the Gaon Sabha and the State of U.P.

17. Besides this order does not fulfill the requirements of the judgment as provided under the Civil Procedure Code. The case being decided, was a regular title suit under Section 229-B of the Act. The judgment therefore, was necessarily required to comply with the provisions of the Civil Procedure Code and a finding on each and every issues framed was necessarily required to be recorded. No such exercise has been done. The issues framed have not yet been referred to in the judgment of 05.04.2010. On the contrary in the last line, the Trial Court observed that it is a case of correction of papers.

18. In view of he above discussion and since this Court is of the firm view that the order dated 05.04.2010 was exparte, I do not consider it a fit case for interference on technicalities.

19. The contention of learned counsel for the petitioner is that the State was heard and that the statement of the Revenue Records Keeper had been recorded at the instance of the State is not borne out from the record. As noticed above, the Revenue Record Keeper was summoned on the application filed by the plaintiff and when he appeared with the record his statement was recorded. It therefore cannot be said that the Revenue Record Keeper was produced on behalf of the State or the Gaon Sabha. He having been summoned on the application of the plaintiff, his deposition would necessarily be termed as as one on behalf of the plaintiff.

20. The above noted hearing illegalities and irregularities in the judgment dated 05.04.2010 is sought to be blast over on the ground of technicalities first that the judgment was recalled without notice to the plaintiff or his heirs and that the decree was not condoned and that the order was against a dead person.

21. These grounds raised may have merit, but this Court in exercise of equity jurisdiction under Article 226 of the Constitution of India does not propose to interfere with the impugned orders on such technicalities. These technicalities may render the orders impugned, illegal yet this Court refuses to set aside these so called illegal orders because any interference would amount to restoring an equally illegal order passed by the Trial Court which as already noticed herein in above was clearly exparte against the State and the Gaon Sabha it also failed to comply with the provisions of the Civil Procedure Code and therefore cannot be termed a judgment in the eye of law.

22. Accordingly and for the reasons given above, the writ petition merits no interference. It is therefore dismissed.

23. The parties may appear before the Trial Court and contest the matter on its merits. The original records of Suit No. 9 of 2009-10 produced by learned Standing Counsel be returned for its transmission to the Trial Court."

11. This Court in the case reported in 1985 R.D. 71 Paras Nath singh Vs. The Deputy Director of Consolidation and others has held that if by setting aside the impugned order another illegal order will be restored then the Court under Article 226 of the Constitution of India should not interfere with the impugned order although the order impugned is illegal or irregular. Paragraph No.21 of the judgment rendered in Paras Nath (supra) is relevant which is as follows:

"21. It is, no doubt, correct to say that any order passed without jurisdiction is a nullity and deserves to be quashed. But if as a result of quashing that order another wrong and illegal order would be restored, this Court would refuse to interfere with the impugned order which appears to be quite proper equitable and just order. As mentioned above, the power under Article 226 of the Constitution is devised to advance justice and not to thwart it. To me it appears to be well settled that an order which is illegal cannot be quashed or set aside in writ jurisdiction if quashing of it results in bringing on record another illegal order."

12. This Court in a case reported in AIR 1983 Allahabad 450, Smt. Kaniz Fatima and another vs. Shah Naim Ashraf has held that if no issue has been framed on a question which arise out of the pleadings of the parties, the Court cannot proceed to record a finding on that point. Paragraph nos.19 and 20 of the judgment are quoted hererunder:-

"19. There is no dispute with the proposition of law laid down in the aforesaid decision, but the true scope of the said rule would be that where the parties have led their entire evidence on all the pleas raised by them, they cannot be permitted to urge at the conclusion of the proceedings or in appeal that they were taken by surprise by non-framing of an issue on that particular point on which they have already exhausted their evidence. In such a case it cannot be said that the parties are prejudiced in any manner whatsoever by non-framing of an issue. But the said rule cannot be construed to cover those cases as well where the evidence was led on issues on which the parties actually went to trial, because it is well settled that the evidence adduced on any particular issue by the parties cannot be made foundation for decision of any other and different plea on which no issue has been framed, because in the absence of an issue on the point they cannot be said to have an opportunity of adducing evidence in support of it or in rebuttal of it. It cannot be assumed that the parties have exhaustively led evidence on all the pleas raised in the pleadings. A party is supposed to lead evidence only on the issues framed in the suit. The other party can object and the court can always refuse to re cord evidence which does not relate to the issues framed in the suit. Even if evidence has been led and brought on record, the court will not be justified to look into that evidence for deciding a point not covered by the issues. Thus, it cannot be said that if the parties had led evidence in the case it should be construed to cover all the pleas raised in the pleadings although no issue has been framed on that point.

20. The object of framing the issue is to direct the attention of the parties to lead evidence on that specific issue framed and if no evidence is led (one line obliterated Ed.) drawn against the concerned party for holding that it has no evidence to support or to rebut the plea covered by the issue in question. But in the absence of proper issues covering all the pleas raised in pleadings it cannot be said that the parties have exhausted all their evidence or all the pleas raised by them although the same are not covered by the issues framed. In this view of the matter, we find that in the present case since proper issues have not been framed, which arise out of the pleadings of the parties as well as in the statement of the case recorded under O. 10, R. 2 of the Code, it cannot be said that the defendants have led all their evidence which they would have led in support of the pleas which are not covered by the issues framed in the suit. The decision, recorded by the court below, therefore, cannot be sustained on the said ground urged by the learned counsel for the plaintiff. The case, therefore, deserves to be remanded to the trial court for decision afresh after framing proper additional issues in the suit and giving full opportunity to the parties to lead their evidence which they may like to produce in support of their case. Learned court below will carefully scrutinize pleadings and frame necessary additional issues."

13. The judgment cited by learned counsel for the petitioner will not be applicable in the facts and circumstances of this case rather the judgment rendered in Kallu Khan (supra), Paras Nath Singh (supra) & Smt. Kaniz Fatima (supra) shall be applicable in the instant matter.

14. Considering the entire facts and circumstances, as well as ratio of law laid down by this Court in Kallu Khan & Others (supra), Paras Nath (supra),as well as Smt. Kaniz Fatima (supra), no interference is required against the impugned orders in exercise of jurisdiction under Article 226 of Constitution of India as the result of quashing of impugned orders will result into restoring the illegal order of trial dated 7.1.2013 by which suit under section 229B of U.P.Z.A. and L.R. Act has been decreed in violation of the ratio of law laid down by this court in Kallu Khan and others (supra) as well as Smt. Kaniz Fatima (supra).

15. The writ petition is dismissed, accordingly.

Order Date :- 21.8.2023

Rameez