Allahabad High Court
Anees Ahmad Khan And 2 Others vs State Of U.P. And 7 Others on 24 August, 2023
Bench: Syed Qamar Rizvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:170729
Court No. - 49
Case :- WRIT - C No. - 27099 of 2023
Petitioner :- Anees Ahmad Khan And 2 Others
Respondent :- State Of U.P. And 7 Others
Counsel for Petitioner :- Vijai Kumar Rai
Counsel for Respondent :- C.S.C.
Hon'ble Syed Qamar Hasan Rizvi,J.
Heard Shri Vijai Kumar Rai, learned counsel for the petitioners and Shri Awadhesh Kumar Patel, learned Standing Counsel for State-respondents No. 1, 2, 3 and 4.
Learned counsel for the petitioners at the very outset submits that he may be permitted to delete the names of respondents No. 5 and 6 from the array of parties.
Learned counsel for the State has no objection to the said prayer made by the petitioners.
The petitioners are permitted to carry out the amendments in the writ petition during the course of the day.
This writ petition has been filed by the petitioners for the following reliefs:-
"1. Issue a writ, order or direction in the nature of certiorari to set aside impugned preliminary order dated 01.12.2022 and ex-parte order and judgment 10.4.2023 including final decree dated 01.05.2023 passed by the Sub Divisional Magistrate, Tehsil and Disrict Sambhal in Case No. 03681 of 2021, Computerized Case No. T2-202113740303681 (Akeel Ahmad Khand and others vs. Anees Ahmad Khan and others) under Section 116 of U.P. Revenue Code, 2006, has been filed by the petitioners before the Commissioner, Moradabad (respondent No. 2) (Annexure Nos. 1, 2 and 3 respectively to the writ petition).
2. Issue a writ, order or direction in the nature of mandamus to direct the respondent no. 5 and 6 to restrain not forcibly dispossessed the petitioner from disputed land till the disposal of the stay application dated 6.5.2023 filed by the petitioners before the Commissioner, Moradabad Division, Moradabad in Appeal No. 1107 of 2023 (Anees Ahmad Khan and othes vs. Akeel Ahmad Khan and others) under Section 207 of U.P. Revenue Code, 2006."
Contention of learned counsel for the petitioners is that the appeal against the judgment and order dated 10.4.2023 passed in Case No. 03681 of 2021, Computerized Case No. T2-202113740303681 (Akeel Ahmad Khand and others vs. Anees Ahmad Khan and others) under Section 116 of U.P. Revenue Code, 2006, has been filed by the petitioners before the Commissioner, Moradabad (respondent No. 2) as Appeal No. 1107 of 2023 (Anees Ahmad Khan and others vs. Akeel Ahmad Khan and others) under Section 207 of U.P. Revenue Code, 2006.
The learned counsel for the petitioner submits that the appellate court vide order dated 17.7.2023 admitted the appeal, issued notices to the respondents in the said appeal and summoned the lower court record fixing 23.8.2021 as the next date.
The contention of learned counsel for the petitioners is that the application for interim relief dated 6.5.2023 filed along with the appeal has not been taken into consideration by the appellate court while admitting the appeal on 17.7.2023.
The contention of learned counsel for the petitioners is that they have a prima facie case and the learned court after taking into consideration the bona fides of the petitioners has admitted the appeal, but has not passed any interim order on the application filed along with the said appeal.
In support of his contention, he has relied upon the judgment passed by Hon'ble the Supreme Court in the case of Mool Chand Yadav vs. Raz Buland Sugar Company Limited, Rampur reported in 1982 (3) SCC 484. The relevant part of the said judgment is reproduced herein below:-
"But if orders are challenged and the appeals are pending, one cannot permit a swinging pendulum continuously taking place during the pendency of the appeal, Mr. Manoj Swarup may be wholly right in submitting that there is intentional flouting of the" Court's order. We are not interdicting that finding. But judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted."
Learned counsel for the petitioners submits that at this stage he is not pressing for the relief Nos. 1 and 2 made in the writ petition and prayed that the writ petition be disposed of with a direction to respondent No. 2 to consider and decide the application dated 6.5.2023, as contained in annexure No. 13 to the writ petition.
Learned Standing Counsel submits that he has no objection to the extent that a direction is issued by this Court for expeditious disposal of the application dated 6.5.2023 within stipulated period as to be fixed by this Court.
In view of the nature of the order proposed to be passed, the service of notice upon respondent Nos. 7 and 8 is dispensed with.
In the case of Bhagwan Shankar Bajjpayee vs. District Judge Kanpur Nagar and others reported in 2009 (106) RD 503, this Court in paragraph No. 4 of the said judgment has been pleased to observe as under:-
"In the present case, from a perusal of the order of the Appellate Court dated 5.12.2008, it is clear that the appeal has been admitted. The decree of the trial Court holds that the alleged Will is null and void. The order of the Trial court has serious civil consequences and therefore, the said order must be suspended. The court finds that 3.1.2009 has been fixed by the Appellate Court for the hearing on the stay application filed by the petitioner. Consequently, this writ petition is disposed of with the direction to the appellate authority to pass appropriate order on the stay application on 3.1.2009 positively. Till then the decree passed by the Trial Court shall remain in abeyance. The Appellate Court while passing the orders on the stay application will not influenced by any observation made in this order. It is further directed that in the event the plaintiff-opposite parties are aggrieved by this order, it would be open to the plaintiffs to move a recall application before this court within three weeks."
In view of above, this Court is of the view that no useful purpose would be served in keeping this writ petition pending.
Be that as it may, without adverting on the merits of the case, the present writ petition is disposed of with a direction to Commissioner, Moradabad Division, Moradabad (respondent No. 2), before whom the above-mentioned application dated 6.5.2023 filed in Appeal No. 1107 of 2023 (Anees Ahmad Khan and othes vs. Akeel Ahmad Khan and others) proceedings under Section 207 of U.P. Revenue Code, 2006 to pass appropriate order on the the same strictly in accordance with law, by a reasoned and speaking order expeditiously and preferably on the next date fixed in the matter i.e. 26.9.2023 or within two weeks thereafter.
It is further provided that no unnecessary adjournments be granted to either of the parties.
Order Date :- 24.8.2023
Sumaira
