Allahabad High Court
Om Prakash Pal vs Smt. Bhagwanti Devi And Others on 20 January, 2023
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 262 of 2023
Petitioner :- Om Prakash Pal
Respondent :- Smt. Bhagwanti Devi And Others
Counsel for Petitioner :- Rakesh Kumar Modanwal
Counsel for Respondent :- C.S.C.,Pankaj Gupta
Hon'ble Manish Mathur,J.
Heard learned counsel for petitioner, learned State Counsel appearing for opposite party No.6 and 8 and Mr. Tushsar Gupta learned counsel holding brief for Mr. Pankaj Gupta learned counsel for opposite party No.7. In view of order being passed, notices to opposite parties 1 to 5 stand dispensed with.
Petition under Article 227 of Constitution of India has been filed assailing order dated 23rd November, 2022 and 21st December, 2022 passed in Civil Appeal No. 83 of 2022.
Learned counsel for petitioner submits that petitioner filed a suit for declaration and prohibitory injunction which was registered as regular suit No. 1507 of 1997 which was partly decreed by means of judgment and decree dated 3rd November, 2022. It is further submitted that opposite party No.1, who was not a party to the suit proceedings thereafter filed civil appeal No. 83 of 2022 in which by means of impugned order dated 23rd November, 2022, appeal was held to be maintainable at her instance while recording that she would be an aggrieved person. Interim directions were also issued by the court and subsequently vide order dated 21st December, 2022, it was further provided that trees which have already been cut down over the property in question in compliance of impugned judgment would be kept in safe custody of the gram pradhan of the village concerned and a copy of the order was also sent to the station house officer of police station concerned for necessary compliance.
Learned counsel for petitioner submits that appeal itself was not maintainable at the behest of a person who was neither a party to the proceedings nor had any locus since suits filed earlier by her predecessor-in-interest had already been dismissed and application for cancellation of lease in favour of the petitioner had already been rejected. It is submitted that aforesaid aspects have not been considered by appellate court while passing the impugned orders. It is further submitted that suit property being in the nature of trees are perishable in nature and effect of order dated 21st December, 2022 would mean their ultimate destruction by the time lis is decided. As such it is submitted that the petitioner may be granted liberty to furnish sureties on account of the valuation of trees which may be permitted to be taken away by the petitioner.
Learned counsel appearing on behalf of opposite parties have refuted the submissions advanced by learned counsel for petitioner with submission that impugned order dated 21st December, 2022 being in the nature of consent order, petition under Article 227 of Constitution of India would not be maintainable. However they do not have any objection in case the petitioner is permitted to raise aforesaid plea before the appellate court.
Considering submissions advanced by learned counsel for parites and upon perusal of material on record, it appears that the suit filed by petitioner for declaration and prohibitory injunction was partly decreed vide judgment and decree dated 3rd November, 2022 against which opposite party No.1 has filed appeal and by means of impugned order dated 23rd November, 2022 the appeal has been held to be maintainable. Since petitioner has already taken objections with regard to maintainability of petition which are still pending consideration, it would be appropriate that the appellate court itself decide the said objections.
So far as submission of learned counsel for petitioner with regard to protection of trees already cut in pursuance of judgment and decree dated 3rd November, 2022 is concerned, liberty is granted to petitioner to file an appropriate application before the appellate court with regard to same and in case the appellate court finds merit in the submissions, valuation of the trees already cut may be done by the forest department. Since the trees are in the nature of perishable items, the appellate court may consider releasing the same in favour of petitioner in lieu of some sureties/security as it deems fit based on the valuation made by forest department.
In view of the fact that objections at the appellate stage have already been submitted, the District Judge, Pratapgarh may consider expeditious disposal of civil appeal No. 83 of 2022 (Smt. Bhagwanti and others versus Om Prakash pal and others), preferably within a period of one year from the date a copy of this order is brought on record of proceedings, in case there is no other legal impediment.
Benefit of this order shall be available to the petitioner only in case he cooperates with the proceedings.
With the aforesaid directions, the petition stands disposed of.
Order Date :- 20.1.2023
prabhat
