Manager Prasad Verma vs State Of U.P. And 5 Others
2023 Latest Caselaw 6746 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 5
 

 
Case :- WRIT - B No. - 511 of 2023
 

 
Petitioner :- Manager Prasad Verma
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Rahul Sahai
 
Counsel for Respondent :- C.S.C.,Panchu Ram Maurya,Ram Bilas Prasad,Shashank Maurya
 

 
Hon'ble Dinesh Pathak,J.

Heard learned counsel for the petitioner, learned Standing counsel representing Respondents No. 1 to 3, learned counsel for the private respondent No.6 on the admission of the writ petition and perused the record on board.

In view of the peculiar facts and circumstances of the present case and the order proposed to be passed, this Court proceeds to decide the instant writ petition finally at the admission stage with the consent of the learned counsel for the parties present without calling for their respective affidavits and without putting notice to the respondents No. 4 and 5.

Challenge has been raised in the instant writ petition to order dated 14.12.2022 passed by Deputy Director of Consolidation dismissing the revision filed on behalf of Ugia (predecessor in the interest of the petitioner) assailing the order dated 26.8.2013 passed by Consolidation Officer in a proceeding under Section 9-A (2) of U.P.C.H. Act.

Facts culled out from the averments made in the writ petition are that in the basic consolidation records name of Faujdar was recorded. Rajendra (respondent No.6) has filed objection under Section 9-A (2) U.P. Consolidation of Holdings Act, 1953 (in brevity of U.P.C.H. Act) claiming his right and title over the property in question on the basis of unregistered will deed dated 11.7.1999 said to have been bequeathed by record tenure holder Faujdar. Objection filed by respondent No.6 was allowed by order dated 26.8.2013. On a later stage Ugia (predecessor in the interest of the petitioner) has filed restoration application dated 2.11.2018 against the order dated 26.8.2013. During the pendency of the restoration application she had moved withdrawal application dated 5.12.2018 to dismiss the restoration application as withdrawn. After moving the withdrawal application she had preferred a revision assailing the order dated 26.8.2013. Deputy Director of Consolidation, vide order impugned dated 4.12.2022, has dismissed the revision on the ground of maintainability citing the reasons that the restoration application is still pending consideration and filing of revision directly against the order of Consolidation Officer, bypassing the remedy to file appeal before Settlement Officer of Consolidation, is not sustainable.

Learned counsel for the petitioner submits that the applicant who has moved the restoration application is dominus litis in the lis and once she has moved a withdrawal application to withdraw the restoration application, same will be deemed to be withdrawn even without any formal order passed by the court competent. In support of his submission, learned counsel for the petitioner has relied upon ration decided by Division Bench of this Court in the case of Sheikh Khalikuzzama (Dead) By LRs. Vs. Sheikh Akhtaruzzama (Dead) By LRs. (2004) All. C J. 853. It is further submitted that the Consolidation Officer is the courts subordinate to the Deputy Director of Consolidation, therefore, revision directly filed by the petitioner against the order of Consolidation Officer is maintainable in the eye of law. He also relied upon the case of Omveer Singh Vs. Deputy Director of Consolidation reported in 2022 (154) RD 679. It is next submitted that the instant writ petition is liable to be allowed and the impugned order passed by the Deputy Director of Consolidation is liable to be quashed being illegal, unwarranted under the law and tainted with the irregularities, so far as it has been passed in Revision No.786/799/2022.

Per contra learned counsel for the contesting respondent No.6 has contended that the Deputy Director of Consolidation has rightly dismissed the revision on the ground of maintainability inasmuch as restoration application filed on behalf of the petitioner is still pending consideration before the Consolidation Officer and moving a withdrawal application will not amount withdrawal of the restoration application in absence of formal order passed by court concerned in this regard. It is further submitted that there is an alternative remedy to file a regular appeal under Section 11(1)of U.P.C.H. Act, therefore, filing a direct revision before the Deputy Director of Consolidation is not sustainable in the eye of law. It is further contended that averting remedy to file a regular appeal before the court competent will render the filing of the revision as incompetent. It is next contended that the present writ petition is liable to be dismissed in limine being misconceived and devoid on merits.

Having considered the rival submissions advanced by learned counsel for the respective parties and perusal of record, it reveals that the question for consideration in the instant writ petition lies in narrow compass with respect to the maintainability of the revision which was filed on behalf of petitioner directly against the order passed by the Consolidation Officer, that too during the pendency of the restoration application before the Consolidation Officer against the order dated 26.8.2013.

The first submission advanced by learned counsel for the petitioner with respect to the maintainability of the revision even after availability of alternative remedy to file appeal under Section 11(1) of U.P. Consolidation of Holding Act is founded under the law. It is no more res integra that the Consolidation Officer is a court subordinate to the Deputy Director of Consolidation as enunciated under Explanation - 1 to Section 48(1) of U.P.C.H. Act. Therefore, Deputy Director of Consolidation has got the immense power to examine the correctness and illegality or propriety of any order including the power to examine any finding, whether of fact or law, recorded by any subordinate authority. He has been empowered as well to re-appreciate any oral and documentary evidence adduced by the parties concerned before the court competent. Explanation-3 to Section 48(1) of U.P. Consolidation of Holding Act denotes exhaustive revisional power of Deputy Director of Consolidation in deciding the revision filed against the order passed by the courts subordinate to him. In the case of Omveer Singh (Supra) this Court, relying upon the dictum of Division Bench of this Court in the matter of Faujdar Singh Vs. Deputy Director of Consolidation (2006 (100) RD 462), has held that the revision directly filed assailing the order passed by the Consolidation Officer without availing the remedy of appeal before the Settlement Officer of Consolidation is maintainable in the eye of law and the Deputy Director of Consolidation has got jurisdiction to examine the correctness, legality and propriety of the order passed by the Consolidation Officer even no appeal was preferred by the aggrieved party against the order passed by the Consolidation Officer. The relevant paragraph No. 9 of the judgment in the case of Omveer Singh (Supra) is quoted herein below :

"Revision-petition directly filed under Section 48(1) of U.P.C.H. Act before Deputy Director of Consolidation against the order of Consolidation Officer, bypassing the remedy of appeal before Settlement Officer of Consolidation, cannot be held barred and Deputy Director of Consolidation is well within the jurisdiction to decide said revision by directly entertaining the same against the order of Consolidation Officer. In support of his case learned counsel for the petitioner has cited paragraph nos.43 and 52 of judgement dated 06.01.2006 passed by Division Bench of this Court in the case of Civil Misc. Writ Petition No.1056 of 2002 (Faujdar Singh Vs. Deputy Director of Consolidation and others), reported in 2006 100 RD 462. Relevant paragraph nos.43 and 52 of the judgement are reproduced herein below:-

"43. In view of the above discussion we are of the opinion that the aforesaid decisions laying down that an order of an authority subordinate to Deputy Director of Consolidation can be challenged directly by filing revision under Section 48 of the Act without resorting to the remedy of filing appeal under Section 11 of the Act and thus revision is maintainable lay down law correctly. There is no bar to compel a litigant to invoke the appellate jurisdiction first, before filing a revision under Section 48 of the Act. The decisions holding otherwise, in our considered opinion does not lay down the law correctly and all such decisions are hereby overruled.

52. We decide Question-A.

"whether the Deputy Director of Consolidation can exercise revisional jurisdiction under section 48 against the appealable order passed by the Consolidation Officer where no appeal has been filed/"-Answer in affirmative.""

In this view, as above, I found substance in the submission advanced by learned counsel for the petitioner with respect to the maintainability of the revision filed directly against the order passed by the Consolidation Officer, therefore, Deputy Director of Consolidation should have decided the revision on merits inasmuch as he has ample power to decide the revision under Section 48(1) of U.P. Consolidation of Holding Act.

So far as the next submission advaned by the learned counsel for the petitioner with regard to the pendency of the restoration application is concerned, record reveals that against the order dated 26.8.2013 passed by the Consolidation Officer, Ugia (predecessor in the interest of the petitioner) had filed restoration application dated 2.11.2018. During the pendency of the restoration application she had moved withdrwal application dated 5.12.2018 to dismiss the restoration application as withdrawn. Moreover, without waiting for formal order on the withdrawal application, she had preferred revision directly before the Deputy Director of Consolidation against the order dated 26.8.2013. In this backdrop of the case, Deputy Director of Consolidation has returned a finding that the restoration application will amount pending consideration unless a final order is passed on withdrawal application. The Director of Consolidation has failed to consider that the applicant/plaintiff who has filed application/suit/ case is dominus litis and has his own choice either to go forward with his application/suit/case or to withdraw the same from further pursuance in the given circumstances. There is no dispute that the petitioner has already moved a withdrawal application dated 5.12.2018. The only matter of concern for the parties is that no formal order was passed on the withdrawal application dated 5.12.2018, therefore, it will tantamount to pendency of the restoration application. In the matter of Shaikh Khilq-uz-Zama (Dead) (Supra), as cited by learned counsel for the petitioner, Division Bench of this Court has held that since withdrawing the suit is an unilateral act on the part of the plaintiff and requires no permission or order of court and is not subject to any condition; it becomes effective as soon as it is done just as a compromise. Relevant paragraph No.3, 4 and 5 with respect to the judgment of Shaikh Khilq-uz-Zama (Dead) (Supra) is quoted herein below :

"3. The plaintiff in a suit is dominus litus. He has paid court fee of the suit. Hence as held by the Division Bench decision in a case of Smt. Raisa Sultana Begam v. Abdul Qadir, AIR 1966 Allahabad, 318 he has an absolute right to withdraw his suit at any time before the judgment is delivered vide Order 23 Rule 1 CPC. It has been observed there that since withdrawing a suit in a unilateral no permission order order of the court and is not subject to any condition; it comes effective as soon as it is done just as a compromise does. On withdrawal certain orders may be passed by the Court but hey are not for giving effect to he withdrawal, but to five effect to consequences arising out of the withdrawal. The position is clear from a bare perusal of Order 23 Rule 1(1) CPC.

4. Similar view has been taken by the Supreme Court in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co., AIR 1968 SC 111, vide paragraph-2.

5. The position would be different where the suit has already been decreed and the prayer for withdrawal of the suit is made in a pending appeal. When a judgment is delivered certain rights and liabilities accrue, and hence there is no unconditional right in the plaintiff to withdraw the suit before the appellate Court. It is the discretion of the appellant Court to allow or not to allow withdrawal of the suit, though of course in view of Order 23 Rule 1 (4) CPC the trial Court can impose costs on the plaintiff and the plaintiff is precluded from instituting any fresh suit i respect of the subject mater. However, once an application for unconditional withdrawal of the suit is filed, the court has no right thereafter to proceed and pronounce the judgment on the merits of the case."

Considering the aforesaid dictum of Division Bench in the given circumstances of the present case, I am of the considered view that once the withdrawal application is moved on behalf of the petitioner the restoration application will be deemed to be withdrawn at the part of the petitioner, therefore, pendency of the restoration application and the withdrawal application will not create any bar to the rights of the petitioner in filing of the revision directly before the Deputy Director of Consolidation under Section 48(1) of U.P. Consolidation of Holding Act.

In this conspectus, as above, I am of the considered view, that the Deputy Director of Consolidation has illegally dismissed the revision No.786/799/2022 without applying his judicial mind which is not sustainable in the eye of law. Revision under Section 48(1) of U.P. Consolidation of Holding Act filed on behalf of petitioner was fully competent and the Deputy Director of Consolidation has got jurisdiction to decide the revision on merits. He has committed manifest error in dismissing the revision on the ground of maintainability.

As such, instant writ petition succeeds and is allowed. Order dated 14.12.2022 passed by Deputy Director of Consolidation in Revision No.786/799/2022 filed on behalf of the Ugia (predecessor in the interest of the petitioner) is quashed and the said revision is restored to its original number. Parties are relegated before the Deputy Director of Consolidation to get the revision decided on merits after affording opportunity of hearing to the parties concerned. Deputy Director of Consolidation is hereby directed to decide the said revision in accordance with law, after affording opportunity of hearing to the parties concerned, expeditiously, preferably, within a period of five months from the date of production of certified copy of this order.

Both the parties are directed to appear before the Deputy Director of Consolidation on 27.3.2023.

Before parting the matter, learned counsel for the petitioner has insisted to grant interim order in favour of the petitioner on the ground that interim order had already been granted in favour of the petitioner during pendency of the revision by Deputy Director of Consolidation.

Considering the facts and circumstances of the present case, it would not be befitting to pass any interim order, at this juncture, while remanding the matter before the Deputy Director of Consolidation, however, petitioner is at liberty to move a stay application on 27.3.2023 for interim relief on the basis of interim order dated 12.12.2018 which was initially passed in his favour. Deputy Director of Consolidation is directed to pass an appropriate order on the stay application within 15 days from its filing.

Order Date :- 2.3.2023

Md Faisal