Raj Kumar Singh vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 23549 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:57515
 
Court No. - 18 
 
Case :- WRIT - B No. - 776 of 2023
 
Petitioner :- Raj Kumar Singh
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy., Revenue Deptt., Lucknow And 4 Others
 
Counsel for Petitioner :- Suneel Kumar Singh Kalhans,Richa Srivastava,Shikha Srivastava
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Saurabh Lavania,J.

1. Heard.

2. In view of order proposed to be passed, issuance of notice to the private-respondent(s) is hereby dispensed with.

3. By means of the present petition, a challenge has been made to order dated 04.08.2023 passed by opposite party no. 2/Consolidation Officer (Navin), Gonda, on an application presented on 04.08.2023 by private opposite party no. 3/Vimla Singh w/o Virendra Bahadur Singh with a prayer to recall the order dated 05.04.2023 and 01.05.2023, respectively, passed in the case no. 454 (Anjani Nandan Singh Vs. Mu. Durpati) under Section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "Act, 1953"). The petitioner has also sought consequential relief regarding possession over Chak No. 155 situated at Village Susela, Post Kindhaura, Pargana Dixir, Tehsil- Tarabganj, District -Gonda. The main prayers sought are extracted herein-under:

i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 04.08.2023, passed by opposite party number 2 in Suit / Recall No. 112 and order dated 08.08.2023, passed by opposite party number 2 in Suit No. 72/2023, contained as Annexure Nos. 1 and 2 respectively to the writ petition.

ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to interfere in the peaceful possession of the petitioner over the land in question i.e. Chak No. 155 situated at Village Susela, Post Kindhaura, Pargana Dixir, Tehsil Tarabganj, District Gonda in pursuance of the orders impugned.

4. Assailing the order dated 04.08.2023, it is stated that the application for recall was presented on 04.08.2023 along with application for condonation of delay and without condoning the delay, the opposite party no. 2 vide impugned order dated 04.08.2023 provided interim protection to private opposite party no. 3 though law says that no order could be passed either providing interim protection or on merits of the case without dealing with the issue of condonation of delay. In support of aforesaid, the reference has been made to judgment passed by the Division Bench of this Court in the case of Ram Prakash Vs. Deputy Director of Consolidation pronounced on 03.02.2022 in Consolidation No. 6574 of 2022, relevant portion of which on reproduction reads as under:

"19. We are not going into the issue as to whether an order passed by appellate authority on an application seeking condonation of delay is an interim order or final as the same has not been referred for consideration by the Division Bench. Different situations may arise in an appeal filed along with application seeking condonation of delay. Firstly, the application for seeking condonation of delay may be dismissed. As a consequence thereof, the appeal will also fail. Another situation may be that application seeking condonation of delay is allowed and thereafter the appeal may either be accepted or rejected.

20. If any statute provides certain period for filing of appeal, an appeal filed beyond the time limit will certainly be not entertained. If the provisions of 1963 Act are applicable and party is entitled to seek condonation of delay in filing appeal, an application has to be filed specifying the grounds on which delay in filing the appeal is sought to be condoned. It is only after that the application is allowed, the appeal can be entertained and heard on merits. Before that the appeal cannot be taken up and considered on merits.

21. As far as the issue regarding hearing of the application seeking condonation of delay and the appeal simultaneously is concerned, in our view, firstly the application has to be considered. Only thereafter, the appeal can be considered on merits but there is nothing in law which requires hearing of appeal on merits to be postponed mandatorily after acceptance of the application seeking condonation of delay. Both can be taken up on the same day. However, the appeal has to be heard on merits only after the application seeking condonation of delay has been accepted.

22.In view of the aforesaid discussion, we answer the question referred to the Division Bench that an application seeking condonation of delay has to be decided first before the appeal is taken up for hearing on merits. However, it can be on the same day and there is no requirement of adjourning the hearing of appeal on merits after acceptance of the application seeking condonation of delay."

5. Further, reliance has been placed on paragraph 32 of the judgment passed by the Hon'ble Apex Court in the case of Noharlal Verma v. Distt. Coop. Central Bank Ltd. reported in (2008) 14 SCC 445, which on reproduction reads as under:-

"32. Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits."

6. It is further stated that in relation to order dated 05.04.2023, the petitioner preferred a caveat petition and despite the same, the copy of revision was not provided to the petitioner and thus, the order impugned staying the implementation and operation of order dated 05.04.2023 is in violation of principle of natural justice. On this aspect reference has been made by learned counsel for the petitioner on the judgment passed in the case of S. S. Barathokey Vs. Chairman U.P. Seed and Tarai Development Corporation Limited and Another reported in 1993(11) LCD 486. The relevant paragraphs 7 and 10 to 15 of S.S.Barathokey (supra) are as under:

"7. A perusal of the above Rule 5 will go to show that where an application is expected to be filed, the person claiming the right to oppose such an application, may file a caveat in the Court. Sub-rule (2) provides that the service of the notice of the caveat shall be made upon the other side by registered post acknowledgment due. Sub-rule (3) provides that after the caveat has been filed and the notice thereof has been served on the applicant's counsel, the applicant shall forthwith furnish to the caveator or his counsel copy of the application as well as any miscellaneous application for interim relief. The date of motion is also necessary to be indicated to the caveator's counsel.

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10. A reference has also been made to Section 148-A of the Code of Civil Procedure. In the case of Chandrajit v. Ganeshiya (AIR 1987 All 360) a Division Bench of this Court has held that the provisions of Section 148-A can be applied to appeals, first, second, execution or any other appeal filed under the Code of Civil Procedure or any other enactment. The caveats would be entitled to be entertained at the time an appeal is submitted for reporting. The Stamp Reporter will make a note, if the caveat has already been filed before him, about the same. In para 8 of this case the intention as to why caveat is filed has been made clear as under:-

"8. A caveat is only an intimation to a Judge or officer notifying that the opposite party be given an opportunity to be heard before any action is taken on the application or proceeding initiated by the other side. It is a request which, if attended to, will help the court in doing justice in between parties."

11. In the case of G. C. Siddalingappa v. G C. Veeranna (AIR 1981 Karnataka 242) after considering the provisions of Section 148-A of the Code of Civil Procedure that Court came to the conclusion that the provision regarding service of notice as contained in sub-section (3) is mandatory and non-compliance with it defeats the very object of introducing Section 148-A. Consequently it follows that the breach of sub-section (3) vitiates the order passed thereof. Once is caveat a filed, it is a condition precedent for passing an interim order to serve a notice of the application on the caveator who is going to be affected by the interim order. Once a caveat is filed it becomes the duty of the Stamp Reporter to report that such and such counsel for the opposite parties or one of the opposite parties has filed a caveat and it becomes the duty of the Court to hear that counsel before an interim order is passed in the case.

12. This question was also raised for consideration in the case of Pashupati Nath Arora v. The Registrar, Cooperative Societies Jaipur and other (AIR 1983 Rajasthan 191). In that case the provisions of Section 148-A of the Code of Civil Procedure and the Rajasthan High Court Rules, (Rule 159), were interpreted. In that case the High Court held that in order to make the caveat effective, the analogy of provisions 148-A,CPC can be applied to the caveats which are filed before the Court.

13. A single Judge of this Court in the case of Nainital Bank Limited V. Munsif, Nainital and others (1992(1) LDR 70) has held that an interim order which has been passed in absence of a party who has put in appearance, is to be recalled. In that case also the power had been filed in the Court by the counsel for the opposite parties. The filing of caveat in the court is equivalent to filing of power on behalf of opposite parties and once it is known that a caveat has been filed the office should report this fact.

14. The Hon ble Supreme Court in Jang Singh v. Brij Lal (AIR 1966 SC 1631), has observed in para 6 as under :-

"It is, therefore, quite clear that if there was an error the Court and its officers largely contributed to it. It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be ful-filled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensre that the correct information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: "Actus curiae neminem gravabit."

15. Thus from the perusal of these cases and the Rules of the Courts and Section 148-A of the Code of Civil Procedure it becomes quite apparent that in the present case when a caveat had already been filed it was the duty of the Stamp Reporter to make an endorsement to this effect on the writ petition. In the present case it was not the fault of the opposite parties. At the same time it was also the duty of the learned counsel for the petitioner to have served the notice of the writ petition before filing it in the Court because Sri D. P. Singh, Advocate was the Standing Counsel of the U. P. Seeds and Tarai Development Corporation, the opposite party in the present case. As the petitioner did not serve copy of the writ petition on the counsel for the opposite parties the exparte interim order passed in the present case is liable to be recalled and the matter to be heard again. In this case the exparte interim order has been passed by the Court on the fault of the learned counsel for the petitioner for not serving Sri D. P. Singh, learned counsel for the opposite parties who was also their Standing Counsel. The office of the Stamp Reporter is also to be blamed equally for not reporting about the filing of the caveat in the above case. It is a serious matter which requires consideration. The Stamp Reporter should be vigilant while making reports and see whether a caveat has been filed by the other party while reporting on the writ petitions. Dereliction of duty on the part of the Stamp Reporter and his office has resulted in harassment of the parties and wastage of precious time of the Court."

7. Considering the aforesaid including the law referred above, this Court finds that in keeping the present petition pending, no fruitful purpose would be served as all the issues can be raised before opposite party no. 2, who is under obligation to decide the same as per law by passing reasoned and speaking order.

8. Accordingly this Court finds that justice would suffice if liberty is given to the petitioner to raise all the factual and legal pleas before opposite party no. 2, who shall consider and decide the same expeditiously within time specified.

9. Accordingly, writ petition is disposed of with liberty to the petitioner to prefer a detailed objection raising all the pleas (factual and legal) before opposite party no. 2/Consolidation Officer (Navin), Gonda within two weeks from today.

10. In case, such objection is preferred, the opposite party no. 2 shall consider and dispose of the same within a further period of two months from the next date fixed in the case by reasoned and speaking order strictly as per law.

Order Date :- 28.8.2023

Mohit Singh/-