Allahabad High Court
Sushila Devi (Since Deceased) vs Manoj Kumar on 13 December, 2023
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:240714
Court No. - 44
Case :- MATTERS UNDER ARTICLE 227 No. - 11517 of 2023
Petitioner :- Sushila Devi (Since Deceased)
Respondent :- Manoj Kumar
Counsel for Petitioner :- Ram Janam Shahi,Arvind Kumar
Counsel for Respondent :- Anish Kumar Sinha
Hon'ble Ashutosh Srivastava,J.
Heard Shri Ram Janam Shahi, learned counsel for the petitioner.
The instant petition under Article 227 of the Constitution of India has been filed for setting aside the order dated 9.8.2023 passed by the learned District Judge, Kannauj in Misc. Civil Appeal No. 25 of 2022 whereby and whereunder the appeal has been dismissed and the order dated 15.5.2012 rejecting the application C2/3 under Order 9 Rule 9 read with Section 151 CPC registered as Misc. Case No. 58/74/2011 seeking recall of the order dated 16.11.2011 whereby the Suit No. 116 of 2006 had been dismissed on the non appearance of the plaintiff/next friend.
It is the case of the petitioner that he is the son of Smt. Sushila Devi and Ganga Ram and a retired soldier of the Indian Army. The respondent Manoj Kumar on 14.2.2006 got a registered sale deed executed in his favour from the deceased Sushila Devi of her Khata No. 678, 565 and 564 situated at Village Andawan, Mauja Narmau, Pargana Talgram, Tehsil Chibramau, District Kannauj. The petitioner filed a suit, being Suit No. 116 of 2006 (Sushila Devi versus Manoj Kumar) for cancellation of the sale deed dated 14.2.2006. The suit was instituted as next friend of Smt. Sushila Devi, who was aged about 80-81 years old. The suit was decreed exparte vide judgment and decree dated 10.12.2009. The respondent filed an application under Order 9 Rule 13 CPC on 5.8.2011 registered as Misc. Case No. 31/74 of 2011. The said application was allowed vide order dated 1.11.2011 and the case was restored to its original number. The suit was, however, dismissed in default of the plaintiff petitioner vide order dated 16.11.2011. The petitioner on coming to know of the order dated 16.11.2011 filed an application for restoring the case on 9.12.2011 which was registered as Misc. Case No. 58/74/2011. In the said Misc. Case No. 58/74/2011 the respondent Manoj Kumar and Sushila Devi appeared and filed their affidavits. The petitioner filed documents to demonstrate that the petitioner was the son of Sushila Devi and Ganga Ram. The trial court without looking into the said documents proceeded to reject the restoration case vide its order dated 15.5.2012. The misc. appeal preferred by the petitioner against the said order has also met the same fate.
Learned counsel for the petitioner has argued that the Courts below without going into the merits of the case and looking into the documents filed by the petitioner proceeded to pass the impugned orders which are liable to be set aside. He submits that the suit was dismissed under Order 9 Rule 7 CPC and its restoration was sought under Order 9 Rule 9 CPC. Order 9 Rule 9 CPC bars a fresh suit and as such, the petitioner has been deprived of his valuable rights.
Per contra, learned counsel for the respondent Shri Anish Kumar Sinha submits that the impugned orders are just and proper and warrant no interference by this Court.
I have heard learned counsel for the petitioner and have perused the record.
A perusal of the order dated 15.5.2012 passed by the learned Addl. Civil Judge (Jr. Div.), Chhibramau, Kannauj reveals that adequate reasons have been recorded for rejecting the application under Order 9 Rule 9 CPC. The learned Addl. Civil Judge (Jr.Div.) Chhibramau, Kannauj had summoned Sushila Devi who appeared and stated before the Court that she is not the mother of Ram Nagina Singh and never instructed him to institute the suit in the capacity of her next friend. She is in perfect good health. She has no son and only four daughters. The Court further recorded the finding that Ram Nagina Singh got prepared documents to set up a case of being son of Sushila Devi with intent to grab her landed properties. Ram Nagina Singh admitted that he is not the son of Sushila Devi and that his father's name is Raja Ram. Sushila Devi does not want to contest the case and as such the application of Ram Nagina as her next friend is not maintainable. The Court proceeded to take Ram Nagina Singh into custody but on the intervention of Sushila Devi and the respondent Manoj Kumar, he was released.
The learned District Judge while dealing with the Misc. Appeal filed by the petitioner has upheld the conclusion of the learned Addl. Civil Judge (Jr.Div.) Chhibramau, Kannauj however set aside the finding returned to the effect that Ram Nagina Singh is not the son of Sushila Devi on the ground that such a finding could not have been returned while considering an application under Order 9 Rule 9 CPC.
In the opinion of the Court, the orders impugned do not call for any interference by this Court. Admittedly, the suit giving rise to the present proceedings, being Suit No. 116 of 2006 was instituted as next friend of Sushila Devi by Ram Nagina. Smt. Sushila Devi has stated before the Court that she never appointed Ram Nagina Singh as her next friend nor ever instructed him to file the case on her behalf. She also stated that she is not the mother of Ram Nagina Singh. Besides Ram Nagina Singh has accepted before the learned Addl. Civil Judge (Jr.Div.) Chhibramau, Kannauj that he is the son of Raja Ram and not Ganga Ram husband of Sushila Devi.
In view of the above, I find no merits in this petition. Dismissed.
Order Date :- 13.12.2023
Ravi Prakash
(Ashutosh Srivastava, J.)
